Lekala v Minister for Immigration and Border Protection
[2015] FCA 71
•11 February 2015
FEDERAL COURT OF AUSTRALIA
Lekala v Minister for Immigration and Border Protection [2015] FCA 71
Citation: Lekala v Minister for Immigration and Border Protection [2015] FCA 71 Appeal from: Lekala v Minister for Immigration and Border Protection & Anor [2014] FCCA 2229 Parties: HARISH REDDY LEKALA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 550 of 2014 Judge: BARKER J Date of judgment: 11 February 2015 Catchwords: MIGRATION – application for student (class TU) visa – enrolment requirements for student visa – adverse credibility findings made – whether failure to provide procedural fairness – whether Tribunal considered wrong question – whether Tribunal erred in refusing request for extension of time to provide material Legislation: Migration Act 1958 (Cth) s 359AA, s 359A, s 360, Pt 5, Div 5
Migration Regulations 1994 (Cth) Sch 2 cl 572.235, Sch 8 condition 8202, condition 8202(2), condition 8202(2)(a)
Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Date of hearing: 11 February 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 49 Counsel for the Appellant: The appellant did not appear Counsel for the First Respondent: Ms C Symons Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 550 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: HARISH REDDY LEKALA
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
11 FEBRUARY 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant to pay the costs of the first respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 550 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: HARISH REDDY LEKALA
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE:
11 FEBRUARY 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The appellant is a male citizen of India, who applied for a student (class TU) visa on 6 June 2011.
The appellant originally arrived in Australia on a student (class TU, subclass 572) visa, which was granted offshore on 31 May 2008. He was subsequently granted further student (class TU, subclass 572) visas on 27 June 2008, and on 19 May 2010.
The appellant claimed to have completed a Certificate III in Hospitality (Commercial Cookery) and a Diploma of Hospitality Management at the Victorian Institute of Technology by 16 December 2009.
He claimed to have then enrolled in a one year course to obtain a Certificate IV in Business at St Peter Institute, commencing in March 2010 and concluding in August 2010. The appellant claimed he was unable to complete this course due to stress suffered as a result of attacks on foreign students at that time and his parents’ financial problems.
He claimed to have re-enrolled at a later date, with the intention of returning to India to find employment once he had completed the course. The appellant claimed he was enrolled at St Peter Institute between 25 August 2010 and 20 June 2011, although he was not exactly sure of the dates. The appellant also claimed that he completed three units at St Peter Institute but after that time his father could not send money due to his sister’s dowry requirements.
On 25 August 2011, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a student visa.
The appellant sought review of this decision before the Migration Review Tribunal, but the Tribunal affirmed the decision of the Minister on 21 May 2013 (first Tribunal).
On 29 November 2013 the matter was remitted by consent to the Tribunal from the Federal Circuit Court.
On 3 March 2014, after a hearing on the same day, a second Tribunal constituted by the same member as the first Tribunal affirmed the delegate’s decision to refuse to grant the appellant a student visa (Tribunal’s decision).
The Federal Circuit Court gave judgment on 3 September 2014 (the judgment was subsequently revised and published on 25 September 2014) dismissing the appellant’s application for judicial review of the Tribunal’s decision. See Lekala v Minister for Immigration and Border Protection & Anor [2014] FCCA 2229.
The appellant now appeals from the Federal Circuit Court’s decision.
THE TRIBUNAL’S DECISION
The second Tribunal stated that the appellant’s last substantive visa was a student (class TU, subclass 572) visa. This visa was subject to condition 8202(2) of Sch 8 to the Migration Regulations 1994 (Cth) (Regulations) which required him to remain enrolled in a registered course.
The Tribunal considered condition 8202(2) to be a visa condition to which the concept of substantial compliance applied. Therefore it undertook to determine whether the appellant had substantially complied with the condition.
The Tribunal noted that it had written to the appellant prior to the hearing, inviting him to lodge any documents or written submissions he intended to rely on. It also noted the appellant had been represented by the same registered migration agent since June 2011.
The Tribunal suggested it could form the view that the appellant’s evidence was inconsistent, which undermined his credibility generally. For example, the Tribunal noted the appellant did not claim to be enrolled between 25 August 2010 and 20 June 2011 until the day of the hearing and that he had not obtained evidence in support of this claim, despite knowing the issues in dispute. The Tribunal also noted there was inconsistency between a letter written by the appellant on 4 July 2011 on the departmental file and his evidence at hearing.
The Tribunal found that information on the departmental file showed that the appellant was not in fact enrolled in a registered course between 25 August 2010 and 9 May 2011. The Tribunal found the appellant had conceded in a letter dated 4 July 2011 that he was not enrolled for some time due to anxiety, financial problems and stress associated with attacks on students in Melbourne. The Tribunal noted the appellant also acknowledged at hearing that he could not continue at St Peter Institute because his father could not send money due to his sister’s dowry requirements. The appellant’s enrolment in a Diploma of Management scheduled to commence on 20 September 2010 was cancelled on 25 August 2010 for non‑payment of fees. The appellant appeared to have enrolled in a Diploma of Business commencing 9 May 2011, however the Tribunal found the enrolment was cancelled on 2 August 2011 for non-commencement of studies.
While the appellant provided evidence of having been enrolled in a Certificate IV in Business course at St Peter Institute between 15 March 2010 and 25 August 2010, the Tribunal found the appellant did not in fact commence studies. The appellant’s transcript of results in respect of the Certificate IV in Business course lists a number of subjects as “not yet complete”. The appellant provided confirmation of enrolment in respect of the Certificate IV in Business course, which listed a start date of 20 June 2011 and end date of 18 December 2011. The enrolment was created on 31 May 2011, allowing the Tribunal to find the appellant was enrolled from 31 May 2011. The Tribunal therefore found the appellant was not enrolled from 25 August 2010 until 31 May 2011 when his enrolment in respect of the Certificate IV in Business course was confirmed.
The Tribunal did not accept the appellant believed himself to be enrolled from 25 August 2010 until 31 May 2011. The Tribunal found that the appellant was “willing to contrive evidence” due to his evidence at the hearing, which was “inconsistent and contradictory”. The Tribunal also found the appellant had the opportunity to provide medical evidence, but did not do so, therefore did not accept that the appellant consulted a doctor for stress or was precluded from maintaining his enrolment due to a medical condition.
The Tribunal found the appellant had not complied substantially with condition 8202 of Sch 8 to the Regulations in relation to his previous visa, therefore did not satisfy cl 572.235 of Sch 2 to the Regulations. The Tribunal considered the breach of the condition to be serious, considering he was not enrolled for a significant period of time and had not, in the Tribunal’s view, provided a truthful explanation for why he was not enrolled.
For similar reasons, the Tribunal found the appellant did not meet the requirements for other subclasses of student (class TU) visas.
JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT
The appellant brought an application for judicial review in the Federal Circuit Court on 19 March 2014. His application asserted nine grounds of review, by which the appellant claimed that the Tribunal did not provide procedural fairness.
The appellant declined to make oral submissions in support of his application at the hearing.
In respect of the appellant’s grounds of review, the primary judge dismissed grounds 1, 3, 4, 5, 8 and 9 on the basis that no issues for judicial review were raised.
In respect of the appellant’s second ground of review, namely that the Tribunal member did not understand his situation, and there was no procedural fairness, the primary judge did not find the Tribunal to have denied procedural fairness. His Honour stated 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, citing Minister for Immigration and Citizenship v Li[2013] HCA 18; (2013) 249 CLR 332. His Honour noted that the Tribunal may decide in some cases that “enough is enough” and lawfully exercise its discretion to refuse an applicant further time to supply material or obtain evidence (citing Li at para [82]). As such, his Honour held there was no breach of Div 5 of Pt 5 of the Migration Act 1958 (Cth) (Act), which was said to exhaustively set out the natural justice hearing rule for matters dealt with in that division.
In respect of the sixth ground for review, namely that the appellant was not given a chance to make submissions as to why he was not able to study while he had no study rights, his Honour found this was factually incorrect and the appellant was given full opportunity to make submissions about his situation but failed to convince the Tribunal.
In respect of the seventh ground of appeal, namely that the appellant claimed the decision was “unfair and not legitimate” as he “lost the future in Australia as well as time and money”, the primary judge again found procedural fairness was accorded to the appellant.
APPEAL TO THIS COURT
The appeal was listed for hearing on Wednesday 11 February 2015 at 2:15pm. The day before, on Tuesday 10 February 2015, the appellant emailed the Court’s Victorian Appeals Coordinator at 4:55pm advising that:
extension of date
Dear Sir/ Madam,
iam [the appellant] refno- … I am unable to come for hearing due to my health issues developed from yesterday. Even I am in situation where can’t walk to hospital to get medical certificate, if I get better by tomorrow that at least I cloud go to doctors and get the medical certificate done and submitted to Registrar of federal circuit court as well as to Lawyers.
please kindly give me an extension
Thank you very much,Sincerely
On the morning of the day of the hearing, the Court’s Victorian Appeals Coordinator responded to the appellant’s email advising as follows:
URGENT - Harish Reddy Lekala v MIABP & Anor (VID550/2014) - adjournment not granted
UNCLASSIFIED
Dear …
Please see emails below. You should provide the Court with a medical certificate for consideration as soon as possible and should proceed on the basis that your appeal hearing this afternoon will go ahead.
We have tried to telephone you to provide you with this information but have not been successful in getting through to you.
Yours sincerely
The Court also informed the Minister’s solicitors of the appellant’s request for an adjournment.
The Court has heard nothing further from the appellant despite the further attempts to contact him by telephone and email and has not received a medical certificate to confirm his illness.
Counsel for the Minister indicated that she was instructed to oppose any adjournment of the appeal.
In circumstances where the appellant late in the afternoon of the day before the hearing has requested an adjournment of the hearing due to ill health, but, despite a request that he do so, has failed to produce a medical certificate of ill health and has failed to respond to the Court’s attempt to contact him, request for an adjournment is declined.
The appellant raises six grounds in his notice of appeal, namely that:
(1)Tribunal member did not even understand my situation, there is no procedural fairness;
(2)member says ‘Did you ever applied for study rights since you have lost the study rights? If applied proof needs to be submitted’;
(3)many times [he] went to the Department of Immigration and Border Protection to ask the study rights but they have told ask the tribunal, if tribunal has jurisdiction to review it which led me to apply the study rights;
(4)[he has] been bounced in between DIBP and MRT for years and Tribunal opens [his] file refused after the Federal Circuit Court remits the application to Migration Review Tribunal;
(5)[he] wasn’t even given some chance to make some submissions in regarding [his] situation how [he] wasn’t able to study while [he] was imposed no study rights by DIBP; and
(6)[he has] felt this is unfair and not legitimate to [him] as [he has] lost the future in Australia as well as time and money.
These grounds substantially replicate those advanced in the Court below.
The appellant has provided further information in his notice of appeal, by way of “background”. He claims that the department and the tribunal have refused his application, and applications for review, without providing an adequate time frame to provide further documents, evidence and submissions. Further, the appellant claims he was not afforded an adequate opportunity to provide submissions to the Federal Circuit Court. He also purports to provide evidence that he was unable to obtain documentary evidence due to one of the colleges he had enrolled in closing down.
The Minister submits that this further information provided by the appellant in his notice of appeal suggests the appellant seeks to rely on an explanation for his failure to study that was not previously raised either before the Tribunal or before the Federal Circuit Court. In the Minister’s submission, any such explanation cannot be considered in the context of an appeal from a decision of the Federal Circuit Court.
Further, the Minister submits, for the reasons that were advanced in written submissions before the Federal Circuit Court, that the decision of the Tribunal was free of discernible error.
The Minister’s submissions identify three issues in the appellant’s grounds of review. First, in respect of the appellant’s submissions that the Tribunal concerned itself with a wrong issue or question, the Minister submits the Tribunal’s finding that the appellant had not complied with condition 8202 of Sch 8 to the Regulations and did not meet the requirements of cl 572.235 of Sch 2 to the Regulations was open to the Tribunal and reflected proper application of the law. The Minister submits the appellant must have complied substantially with each individual condition that applied to his last substantive visa. In the Minister’s submission, condition 8202(2)(a) has been interpreted to require an applicant for a student visa to maintain enrolment in a registered course, therefore it was sufficient in this case for the Tribunal to find that the appellant had not complied substantially with condition 8202 on the basis of the Tribunal’s finding that the appellant had not been enrolled in a course of study for the period 25 August 2010 to 31 May 2011.
Secondly, with regard to the appellant’s submissions that the Tribunal failed to afford him procedural fairness, the Minister submits the Tribunal complied with ss 359AA, 359A and 360 of the Act in inviting the appellant to appear before it and providing particulars of information to the appellant orally during the course of the hearing. The Tribunal’s reasons, in the Minister’s submission, indicate the Tribunal told the appellant it had information about his enrolment that, subject to his comment or response, would be “the reason or part of the reason” for affirming the decision under review. The Tribunal explained the relevance of the information and informed the appellant that he was entitled to request further time before commenting or responding, consistent with its statutory obligation.
Thirdly, in respect of the appellant’s submission that the Tribunal erred in its consideration of his request for an extension of time to provide material, the Minister submits the decision of the Tribunal to refuse the appellant an extension of time represented a reasonable exercise of the Tribunal’s discretion in the circumstances. In the Minister’s submission, 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, and may lawfully exercise its discretion to refuse an applicant further time to supply material or obtain evidence (Li at [82]). It is the Minister’s submission that the Tribunal reached its decision not to grant the appellant further time to produce evidence that he had attended a doctor by reasoning that was intelligible and reasonable and that exposed an evident and intelligible justification. In particular, the Minister notes that the appellant sought further time two and a half years after first receiving notice that his enrolment history was a critical issue in the review, and his request was couched in vague terms with no attempt to place any temporal parameters around the production of further material.
The Court considers, for the reasons advanced on behalf of the Minister, that the appeal should be dismissed.
The Tribunal was entitled to make the finding of fact that it did, that the appellant was not enrolled in a course of study for the period 25 August 2010 to 31 May 2011.
The reasons offered to the delegate initially, and to the Tribunal at the hearing of the review application, did not satisfy the Tribunal that there was any relevant enrolment or, should it possibly have been relevant, that the failure to be enrolled could be ignored in the circumstances.
The finding of fact made was sufficient in the circumstances to affirm the decision of the delegate.
The appellant was provided ample opportunities to put any other relevant information concerning his review application before the Tribunal, including as to his medical condition at times he was not enrolled. He did not do so. The information he did provide to the Tribunal in answer to questions raised, however, contradicted in a number of respects, as the Tribunal explained, earlier statements made or other evidence provided by the appellant to the Tribunal. It was reasonable for the Tribunal to complete its decision‑making, in the circumstances, on the basis of the information then before the Tribunal and not to provide the appellant with an adjournment, for example, to attempt to adduce evidence about his earlier asserted medical condition.
In all of those circumstances, his Honour, in the Court below, did not err in finding that each of the purported seven grounds of appeal lacked substance.
For these reasons the appeal should be dismissed.
The Court should also add that the endeavour by the appellant to place additional information before this Court on this appeal, which was not before the Tribunal and not before the Court below, is inappropriate. This Court is called upon to deal with the question whether the Court below made any errors of law. It does not undertake merits review on an appeal. As a result, it is not appropriate for the Court in these circumstances to countenance any additional information.
To the extent that the appellant seeks leave to adduce further evidence on this appeal, the circumstances of this case, including the ample opportunities the appellant has had to do this before the Tribunal and later on judicial review before the Court below, there should be no leave given to adduce any further evidence at this stage of proceedings.
CONCLUSION AND ORDERS
For the reasons given above, the appropriate orders are:
(1)The appeal be dismissed.
(2)The appellant to pay the costs of the first respondent, to be taxed if not agreed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.
Associate:Dated: 11 February 2015
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