Lekala v Minister for Immigration - [2014] FCCA 2229

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEKALA v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2229

Catchwords:
MIGRATION – Judicial review – whether applicant complied substantially with the conditions of his last substantive visa to remain enrolled in a registered course – whether an applicant has complied with a condition is a question of fact – not enrolled for 10 months – not substantially complied – evidence inconsistencies may undermine credibility – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 359AA

Migration Regulations 1994, Sch.5 cls.572.223, 572.235

Abebe v Commonwealth (1999) 197 CLR 510
Kamal v Minister for Immigration & Multicultural Affairs (2002) 126 FCR 467
Kim v Witton (1995) 59 FCR 258
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant:

HARISH REDDY LEKALA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 478 of 2014

Judgment of:

Judge F. Turner

Hearing date:

3 September 2014

Date of Last Submission:

3 September 2014

Delivered at:

Melbourne

Delivered on:

3 September 2014

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent:

Ms Symons

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application for judicial review filed 19 March 2014 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 478 of 2014

HARISH REDDY LEKALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 3 March 2014. That decision affirmed the decision of the delegate to the Minister not to grant the applicant a Student (Temporary) (Class TU) visa.
The applicant applied for a visa in Australia on 6 June 2011 (Court Book “CB” p.17). The visa was refused because the applicant did not meet cls.572.223 and 572.235 of Schedule 5 to the Migration Regulations 1994 (the “Regulations”); They were the criteria for a Student (Class TU) Subclass 572 Vocational Education and Training Sector visa (CB p.59.7).
On 22 September 2011, the applicant applied to the Tribunal for a review of the decision of the delegate (CB p.68). On 21 May 2013, the Tribunal affirmed the decision of the delegate (CB p.152). On 29 November 2013, the matter was remitted by consent from this Court to the Tribunal for hearing according to law (CB p.157).
By letter dated 24 January 2014, the applicant was invited to attend the hearing before the Tribunal on 3 March 2014, to give evidence and present arguments. The applicant attended the hearing with his migration agent (CB p.204). There was also the assistance of an interpreter at the hearing (CB p.218.7).
The issue before the Tribunal is whether the applicant met cl.572.235 of Schedule 2 to the Regulations. That criterion required that at the time of decision, the applicant had complied substantially with the conditions of the last substantive visa held by him and any subsequent bridging visa (CB p.218.9).
The applicant’s last substantive visa was a subclass 572 visa, which was subject to condition 8202 that required him to remain enrolled in a registered course (CB p.218.10). The focus of the review is set out at CB p.218.10 and was whether the applicant substantially complied with condition 8202, in particular 8202(2) (CB p.219.1). That condition provides:
(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 570 (Schools sector) visa who is a secondary exchange student – the holder is enrolled in a full-time course of study or training. (CB p.225)
Whether the applicant has complied with a condition is a question of fact. The Court quotes and accepts [11] and [12] of the Tribunal’s decision as follows.
(11)Whether the applicant has complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case. Kim v Witton (1995) 59 FCR 258 (at 271), followed in Baidakova v the MIMIA [1998] FCA 1438. For example, the circumstances considered by Sackville J to be relevant in Kim v Witton included:
· the nature of the breach of condition
·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted
·whether or not the applicant deliberately flouted the condition; and
·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything contributed to the failure and, in particular, whether the Department misled the applicant.
(12)However, there is no rigid test and those considerations should not be regarded as exhaustive, or elevated to the status of relevant considerations in every case: see Shrestha v MIMIA [2001] FCA 1578 and MIMA v Modi (2001) 116 FCR 497.
The Tribunal found that the concept of substantial compliance may apply to condition 8202(2) (CB p.219.8). The Tribunal made a finding of fact that “the applicant had not substantially complied with the conditions of his previous student visa as he had not been enrolled between 25 August 2010 and 20 June 2011 as he was required to do by a condition of his previous student visa” (CB p.219.8).
The department sent an email to the applicant’s migration agent on

7 June 2011 (CB p.36) inviting comment on the adverse information that the applicant did not study between July 2010 and May 2011. An extract from the email is set out on CB p.219 [15].
The migration agent responded by email on 4 July 2011 (CB p.41) which attached a statement from the applicant (CB p.48). Part of that statement is quoted in the Tribunal’s decision (CB p.220.1). The Tribunal considered the explanations given and found that “the applicant’s evidence was inconsistent which undermined his credibility generally” (CB p.221.5).
In Kamal v Minister for Immigration & Multicultural Affairs (2002) 126 FCR 467, Mansfield J stated at [36]:
“It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made… The Court is not empowered to review the Tribunal’s decision on the merits...”
The Tribunal advised the applicant that it had information which, subject to his comment, would be the reason for affirming the decision under review and that the applicant could request further time before commenting or responding (CB p.221.6). The applicant chose to comment without requesting further time (CB p.221.7).
The Court finds that s.359AA to the Migration Act 1958 (the “Act”) was complied with.
The Tribunal made a finding of fact that the applicant was not enrolled from 25 August 2010 to 31 May 2011 (CB p.224.2). That finding of fact is not amenable to review.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:
“To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court….. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
The Court refers to the following decisions:
·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A (supra) at [64]-[69] per Tamberlin and R D Nicholson JJ.
·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.
·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:
“… there is no error of law… in making a wrong finding of fact…”.
The Tribunal set out the explanations given by the applicant which it did not accept at CB p.224 [39]. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Tribunal considered the breach of the student visa condition to be serious and set out its reasons (CB p.224.5). The Tribunal had regard to the particular circumstances of the case. The Court refers again to the decision in Kim v Witton (1995) 59 FCR 258 followed in Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436. The Tribunal found that the applicant had not provided a truthful explanation. The Tribunal found no evidence that a breach was inadvertent. The Tribunal found the breach to be serious (CB p.224 [40]).
The Tribunal made a finding of fact that the applicant had not substantially complied with condition 8202 and that therefore he did not satisfy cl.572.235 (CB p.224 [41]).
Once a finding is made that an applicant does not meet the criteria for a visa, s.65 of the Act requires that a visa be refused. That is what occurred in this case.
The application for judicial review contains the following grounds:
(1)S.478, Judicial review can be lodged in 28 days after tribunal review has been finalised
(2)Tribunal member did not even understand my situation, there is no procedural fairness
(3)Member says “Did you ever applied for study rights since you have lost the study rights? If applied proof need to be submitted”.
(4)Many times I went to the Department of Immigration and Border protection to as the study rights by they have told ask the tribunal, if tribunal has jurisdiction to review it which led me to apply the study rights.
(5)Just I have been bounced in between DIBP and MRT for years and Tribunal opens my file refused after the Federal Circuit court remits the application to Migration review Tribunal.
(6)I wasn’t even given some chance to make some submissions in regarding my situation how I wasn’t able to study while I was imposed no study rights by DIBP.
(7)I have felt this is unfair and not legitimate to me as I have lost the future in Australia as well as time and money.
(8)I hope Federal circuit court has got Jurisdiction in this matter.
(9)Or else Apex court might have Jurisdiction in my matter.
The Court invited the applicant today to put submissions in support of his application but he declined. The first respondent consented to the Court reaching a decision on the matter without hearing oral submissions.
Ground 1 – raises no issue for judicial review and is dismissed.
Ground 2 – it is clear from the Tribunal’s decision that it investigated the applicant’s circumstances and considered them. Ground 2 also alleges the denial of procedural fairness. The Tribunal was not required to grant an extension of time to the applicant. The Court refers to the decision in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 and states from viewing that decision that the Tribunal is not under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the case. Further, the High Court acknowledged in Li that in appropriate cases, the Tribunal may decide that ‘enough is enough’ and lawfully exercise its discretion to refuse an applicant further time to supply material or obtain evidence: see Li at [82].
The Court finds no breach of Division 5 of Part 5 of the Act which sets out the extent of the obligations to accord procedural fairness for matters dealt with under that Division. That Division is an exhaustive statement of the natural justice hearing rule for matters under that provision. Ground 2 is dismissed.
Ground 3 – raises no issue for judicial review and is dismissed.
Ground 4 – complains about the applicant going to the Department to ask about study. It raises no issue for judicial review and is dismissed.
Ground 5 – raises no issue for judicial review and is dismissed.
Ground 6 – is factually incorrect. The applicant was given full opportunity to make submissions about his situation but failed to convince the Tribunal. Ground 6 is dismissed.
Ground 7 – claims the decision is unfair and not legitimate. The Court finds that procedural fairness was accorded to the applicant. Ground 7 is dismissed.
Ground 8 – raises no issue for judicial review and is dismissed.
Ground 9 – raises no issue for judicial review and is dismissed.
The written submissions of the first respondent have been taken into account in reaching the conclusions in this matter.
The application for judicial review is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 25 September 2014