LAMA v Minister for Immigration

[2014] FCCA 2743

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2743

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision – application for a Student (Temporary) (Class TU) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360(1), 360A, 362B, 362B(1), 379A

Migration Regulations 1994 (Cth), cl.573.235, Sch 2, 8202, Sch 8

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: DEVENDRA LAMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1352 of 2013

Judgment of: Judge Hartnett

Hearing date: 30 October 2014

Delivered at: Melbourne

Delivered on: 30 October 2014

REPRESENTATION

The Applicant: In Person

Counsel for the respondents: Ms Randall-Smith

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The Application filed 26 August 2013 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1352 of 2013

DEVENDRA LAMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an Application filed 26 August 2013, seeking judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) which affirmed a decision of a delegate (‘the delegate’) of the Minister of Immigration and Citizenship (as he then was) (‘the Minister’) to refuse to grant the Applicant a Student (Temporary) (Class TU) visa (the visa).  The grounds of the application are set out as follows:-

   (1)The Tribunal refused my application on the basis that I did not study between 20 April 2010 and 2 December 2010 and was not enrolled to study between 23 July 2010 and 12 December 2010.  In refusing my application the Tribunal did not take into account or give enough weight to;

   (i)the reasons for the gap in studies and enrolment as set out in my Affidavit;  and

   (ii)the studies undertaken by me while on student visa in Australia as set out in my Affidavit.

   (2)The Tribunal failed to give me an opportunity to present my case as (sic) the hearing.”

2. The Applicant filed contemporaneously with the Application in the proceedings an Affidavit affirmed by him on 23 August 2013.  Relevantly, the Applicant swore in that Affidavit at paragraphs 5, 6 and 7 therein, the following:-

   “5. On 30 July 2013 the Tribunal had a hearing of my application.  I did not attend at the hearing as I did not know of the hearing.  On that day the Tribunal refused my application.  The Tribunal’s decision was:

   “The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.”

   A copy of this decision is attached as “Annexure 1”.

   (6)The Tribunal refused my application on the basis that I did not study between 20 April 2010 and 2 December 2010 and was not enrolled to study between 23 July 2010 and 12 December 2010.

   (7)My Previous student visas were from 19 March 2009 to 28 April 2010 and from 7 May 2010 to 22 October 2011.  During this time I first started a course of Diploma of Business that I studied and completed between 23 March 2009 and 6 November 2009.  After that I started Certificate III in Automotive but could not finish it as I did not find this course suitable for me.  Then I started a course of Certificate III in Hospitality (Commercial Cookery) in the next available batch from 3 December 2010.  The reason for the gap in enrolment was because of the course dates.  I then continued my studies and completed the one year course of Certificate III in Hospitality (Commercial Cookery) from December 2010 to December 2011.  I then started a 2 year course of Bachelor of Accounting in March 2012 (the first intake of 2012).  I completed first semester and realised that I needed more help with my English language.  I then suspended my Bachelor of Accounting course and did a course for English from November 2012 to March 2013.  I then enrolled for the second semester of Bachelor of Accounting starting in May 2013.  The start date was, however, delayed to August 2013 due to some problem in credit transfer of subjects I had completed in first semester and the Diploma of Business I had completed in 2009.  I have not been able to continue this course because of the refusal of my student visa.  If I am granted the student visa, I intend to continue and complete the Bachelor of Accounting.  The Tribunal did not take all this into account in arriving at its decision to refuse to grant me a student visa.

   (8)I believe that the Tribunal’s decision was incorrect.”

3. The First Respondent seeks dismissal of the Applicant’s application and a costs order consequent upon such dismissal.

4. The First Respondent relies upon the evidence as contained in the Court Book filed 11 February 2014 and the First Respondent’s Contentions of Facts and Law filed 8 April 2014.  The Applicant appeared in person this day and failed to file and serve written submissions as ordered by this Court on 16 October 2013, nor did he amend his application in any way as was provided for in the Orders made.

History

1. The Applicant first arrived in Australia in 2009 as the holder of a student visa. He was granted a further student visa on 7 May 2010 which was set to expire on 22 October 2011. That visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (‘the Regulations’) which, at that time, provided:-

   “(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2) A holder meets the requirements of this subclause if:

   (a) the holder is enrolled in a registered course; or

   (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full‑time course of study or training.

   (3) A holder meets the requirements of this subclause if neither of the following applies:

   (a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i) section 19 of the Education Services for Overseas Students Act 2000; and

   (ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i) section 19 of the Education Services for Overseas Students Act 2000; and

   (ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

   (4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full‑time course of study or training.”

2. On 20 October 2011, the Applicant applied to the Department of Immigration and Citizenship (as it then was) for the grant of the visa. On 12 January 2012, the delegate refused to grant the visa, in part, because the Applicant did not satisfy cl.573.235 of Schedule 2 to the Regulations. The Applicant then applied to the Tribunal for review of the delegate’s decision and on 30 January 2012.

3. On 20 June 2013, the Tribunal wrote to the Applicant’s authorised recipient, Mr Tonnou Wg Ghothane, inviting the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.  That invitation to appear before the Tribunal noted the hearing date, time, and location, and advised that an interpreter in the Nepali and English languages would be available to assistance the Applicant. Additionally, the Tribunal invited the Applicant in that invitation to appear before the Tribunal with the following:-

   “1. A certificate of enrolment as required by cl.572.222, or evidence that you are enrolled in, or are the subject of a current offer of enrolment in a registered course as set out in cl.572.231.

   2. Evidence of all your academic achievements and evidence of your enrolment in a registered course or courses since your arrival in Australia as the holder of a student visa, for the purposes of cl.572.223(2)(a)(ii).

   3. A statement as to whether you were enrolled in the period from 20 April 2010 to 2 December 2010. Any evidence in support of that statement.

   4. Evidence of adequate arrangements for health insurance during the period of your intended stay in Australia having regard to cl.572.225. The Member considers that adequate arrangements for health insurance should cover the duration of the course or courses in which you have indicated you are enrolled and at least one additional calendar month.

   5. Current evidence that you satisfy English language, financial capacity and ‘Other’ requirements in any of the alternative ways applicable for your assessment level set out in Schedule 5A for the purposes of cl.572.223(2)(a)(i). Please note the following:

   ● I draw your attention to the requirement to provide evidence that the regular income of any person (including yourself) providing funds to satisfying financial capacity requirements was sufficient to accumulate the level of funding being provided by that person; as well as the requirement to provide evidence of your relationship to this person which demonstrates they are an ‘acceptable individual’.

   ● The Tribunal will assess you against the applicable Schedule 5A criteria, based upon your enrolment at the time the Tribunal makes its decision, taking into account any changes to your enrolment which have occurred since you lodged your visa application. For example, the amount of funds you must demonstrate to satisfy Schedule 5A financial criteria may have changed, reflecting changes in the length of your course, depending on the type of evidence of funds you provide, you may be required  to show a savings history for 6 months prior to the date of your visa application. Furthermore, if your principal course has changed, you may be assessed against a different visa subclass, in which case different Schedule 5A criteria would apply.

   6. Evidence that, while you hold the visa, you will have access to the funds demonstrated or declared in accordance with the financial capacity requirements of Schedule 5A for the proposed period of your stay in Australia, as required by cl.572.223(2)(a)(iii). Without limiting the ways in which this requirement may be satisfied, where you have shown evidence of a loan which is secured against a money deposit, the Tribunal specifically invites you to provide the following:-

   ● evidence of the source of funds used to create that money deposit;

   ● evidence of the regular income of any person providing those funds (for example, official tax records); and

   ● where the funds were obtain from selling land or a dwelling, evidence of a registered deed of sale, and that money has been received from the purchaser.”

4. On 29 July 2013, the Tribunal received a letter from the Applicant’s authorised recipient indicating that he had been unsuccessful in contacting the Applicant despite attempting to so do on numerous times.  The authorised recipient indicated that, in the circumstances, he would be unable to represent the Applicant and that he therefore wished to withdraw his representation.  The authorised recipient requested that the Tribunal contact the Applicant directly.

5. In a phone call between the Tribunal member, Patrick Francis, and the Applicant’s authorised recipient, the Tribunal member noted to the authorised recipient that unless his client withdrew him as his authorised recipient, the Tribunal would continue to send correspondence to him.  In addition, the Tribunal member advised that they would email a copy of the Tribunal decision made on the preceding day to the Applicant.

6. Accordingly, the Tribunal in a letter of 31 July 2013 provided notification of the decision to the Applicant’s authorised recipient and also to the Applicant.

7. On 30 July 2013, the Applicant had not appeared at the hearing as scheduled.  The Tribunal proceeded to determine the matter and affirmed the delegate’s decision not to grant the Applicant the visa.

The Tribunal’s decision

1. The Tribunal had before it the Department’s file relating to the Applicant.  It also had regard to material referred to in the delegate’s decision and other material available to it from a range of sources.

2. Following the Applicant’s failure to appear at the hearing, the Tribunal considered whether or not it should take further action before proceeding to make a decision. In accordance with s.362B of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal determined to decide the matter without taking any further action to allow or enable the Applicant to appear before it. This is set out in paragraph 18 of the Decision Record dated 30 July 2013.

3. The Tribunal, in paragraph 22 of its Decision Record, said as follows:-

   “The issue in the present case is whether, at the time of this decision, the applicant has complied substantially with Condition 8202 of his Subclass 572 Vocational Education and Training Sector visa...”

4. The Tribunal noted there was no evidence that the Applicant had not complied with the conditions of his subsequent bridging visa but it was not satisfied the Applicant had complied substantially with condition 8202 of his Subclass 572 Vocational Education and Training Sector visa.  That conclusion was based on the following:-

   a)the Tribunal was satisfied that the Applicant was not enrolled in a registered course between 23 July 2010 and 2 December 2010, a period of more than four months; and

   b)the Tribunal did not accept the Applicant’s contention that he continued to study for a few months after July 2010 before finding out that his enrolment had been cancelled.  The Applicant ceased attending classes on 20 April 2010 and his enrolment was cancelled on 22 July 2010.

5. The Tribunal said, in paragraph 27 of its Decision Record, that the Applicant’s failure to remain enrolled in a registered course of study for more than four months in the context of being granted a student visa for the purpose of study was significant.  The Tribunal said therein:-

   “… Having found that the applicant did not attend classes after 20 April 2010 the tribunal does not accept that the applicant was unaware of that fact.  Whether or not he knew of the exact date on which his enrolment was cancelled, the tribunal considers that his failure to attend classes or to enrol in a different course were circumstances which inexorably would have presented themselves as being in contradiction to the basic purpose of his presence in Australia, which was to study.  The breach of the condition to remain enrolled in a registered course is not ameliorated, in the tribunal’s view, by the applicant’s claim that he was not given warnings prior to the cancellation of his enrolment.  Whether or not he was provided with written warnings the applicant could hardly fail to appreciate that he was not attending classes and was therefore at risk of having his enrolment cancelled.”

Consideration

1. The first ground of the Applicant’s application does no more than impermissibly challenge the merits of the Tribunal’s decision.[1] It is clear that the Tribunal’s findings were open on the evidence before it and that ground of the application does not disclose jurisdictional error.

   [1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

2. In respect of the second ground of the Applicant’s application, the Applicant appeared in oral submissions made this day to, effectively, abandon that ground.  He claimed that he was, at the time of the Tribunal hearing, not ready to proceed and that his authorised recipient had told him that he had no chance of success.  He was depressed and determined that he would not attend.  He indicated in his submissions this day that he relied on his authorised recipient “too much” and claimed that was his mistake. He sought from the Court that it issue to him (or indicate to him how he might achieve the issuing of) another visa.

3. The Tribunal complied with s.360(1) of the Act by its invitation to the Applicant to appear before it as referred to in the preceding paragraph 7. The notice itself was valid under s.360A of the Act and the manner in which the notice was given to the Applicant complied with s.379A of the Act. In any event, the Applicant takes no issue with those matters.

4. The Tribunal’s exercise of power under s.362B(1) of the Act to determine to proceed with the review was open to it in the circumstances of this case. The Tribunal was not under an obligation to inquire further as to the Applicant’s non-attendance before it. Indeed, in the Applicant’s submissions this day it appears he determined not to attend the hearing as he was “not ready” and “had no chance of success” as advised by his authorised recipient.

5. The Tribunal’s decision to proceed pursuant to s.362B of the Act on the day of hearing was a reasonable one. The Tribunal had done all that it was required to do pursuant to the Act in respect of the holding of a hearing and the notification of same to the Applicant, and there was no error in its exercise of discretion to proceed as it did. Its determination of the matter was open to it on the material before it.

6. The application is without merit.  It shall be dismissed and costs follow the event. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 26 November 2014