MEHRA v Minister for Immigration

[2016] FCCA 1375

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEHRA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1375

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the Tribunal failed to ask itself the correct question – whether the Tribunal failed to constructively exercise its jurisdiction – whether the applicant was denied procedural fairness – whether the Tribunal erred in failing to give the applicant more time to provide evidence – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, Schedule 2, cl.572.224

Applicant: SHUBHAM MEHRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1930 of 2015

Judgment of: Judge Street

Hearing date: 7 June 2016

Date of Last Submission: 7 June 2016

Delivered at: Sydney

Delivered on: 7 June 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Counsel for the First Respondent: Ms R Francois

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1930 of 2015

SHUBHAM MEHRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 12 June 2015 affirming the decision of the delegate not to grant the applicant a Student Temporary (Class TU) visa. The applicant is a citizen of India, and on 23 September 2013, applied for a Student Temporary visa.

2. That Student Temporary visa form asked the applicant a question under “health examination”:

   Have you undertaken a health examination for an Australian visa in the last 12 months?

   The answer was “no”. 

3. The application had a series of questions in relation to health declarations.  Each of those health declarations, the applicant answered in the negative.  The applicant was asked questions about character declarations and, in particular:

   Have you, or any person included in this application to apply for this visa, ever been convicted of a crime or offence in any country including any conviction which is now removed from official records?

   The applicant answered “no”. 

4. There was a question:

   …been charged with any offence that is currently awaiting legal action?

   The answer was “no”.  The applicant also completed a section of the application headed Declaration commencing:

   I declare that –

5. One of the questions set out was:

   I have made adequate arrangements for health insurance for the period of my stay in Australia, and I acknowledge that I am required to maintain these arrangements while in Australia as the holder of a student visa

   The answer was “yes”.

6. The day after lodging the application, the applicant was sent a letter dated 24 September 2013.  That letter identified the need for certain documents, and, relevantly, under the heading Health Insurance, said:

   Please provide evidence that you have adequate health insurance arrangements for the entire proposed student visa duration for yourself and your family unit included in your application who will be accompanying you in Australia.  You need to show that you have cover until 9 September 2016. 

7. The form continued to identify the nature of the adequate health insurance arrangements form that had to be provided.  There was also reference to a necessary required health examination.  The material in the court book identifies a reference to that health examination being the subject of a booking on 22 October 2013 to take place on 30 October 2013.  On 6 November 2013, the applicant’s application was refused, and, relevantly, the delegate said:

   You did not provide evidence of your financial capacity.  You did not provide evidence of holding overseas student health cover.  You gave false information on your student visa application.

8. The delegate set out reasons in relation to those matters, and the applicant then sought a review before a Tribunal by application made on 21 November 2013.  On 7 August 2014, an earlier and differently constituted Tribunal affirmed the delegate’s decision finding that the applicant had provided a bogus document and holding that there were no compelling circumstances whereby the requirements of PIC4020(1) should be waived.  That decision was one which was the subject of consent orders setting aside the earlier Tribunal’s decision on 2 March 2015. 

9. The note in support of that order referred to the earlier Tribunal’s decision being affected by a jurisdictional error as the second respondent failed to ask itself the correct question when considering public interest immunity 4020 under cl.572.224 of schedule 2 of the Migration Regulations 1994.  The note was not sufficient to identify the basis upon which the jurisdictional error was made out, but be that as it may, it was explained to the Court that the nature of the error was the failure to consider whether or not the relevant conduct was intentional. 

10. Notes in support of consent orders should identify with clarity the basis upon which consent orders are being made because the exercise of the judicial power of the Commonwealth is involved in the making of a consent order, and there must be a proper basis for the making of the order, and where it is being remitted to a Tribunal, it must be clear to the Tribunal to whom the matter is remitted and the basis of the error that is conceded.

11. As a result of the orders made on 2 March 2015, a new and differently constituted Tribunal invited the applicant by letter dated 4 April 2015 to attend a hearing on 4 June 2015 to give evidence and present arguments.  The applicant appeared on that day and was represented by his migration agent. The current Tribunal in its reasons identified what had occurred before the delegate and made reference to the criminal convictions in relation to the applicant’s driving. The current Tribunal also identified that he had raised at the hearing that the applicant was asked to provide evidence of health insurance, access to funds to cover his costs and any other information he wanted to provide in support of the applicant.

12. The current Tribunal reasons record that the current Tribunal gave the applicant until 11 June 2015 to make his submissions.  There is a reference by the current Tribunal to the agent stating that he would try to provide evidence required by 11 June or as soon as possible thereafter.  In response to that observation by the applicant’s representative, the current Tribunal said that in view of the time, the applicant and his agent had to provide the necessary evidence.  The current Tribunal would not be granting further time for submissions.  The applicant was asked to provide any information he wanted to provide by 11 June 2015.

13. The current Tribunal also made reference to the fact that on 11 June, it received a submission from the applicant providing an offer of enrolment given to the applicant on 11 June for a Bachelor of Business at Groups Colleges Australia scheduled to commence on 13 July 2015 and end on 22 June 2018 as well as a receipt for fees paid for that course and a student visa financial support statement, and a reference to IELTS test booking for 27 June 2015.  The current Tribunal noted that the applicant’s representative asked for more time to make submissions.  The current Tribunal noted that the applicant had been informed that the length of time the applicant has had to gather the evidence required.  The current Tribunal decided to refuse the request for more time.

14. The letter dated 11 June 2015 requested that the current Tribunal grant the applicant until 17 July 2015 to provide the IELTS test result and the rest of the documents. The current Tribunal identified that there were several issues that arose in the present case, but that a particular requirement in cl.573.225 of schedule 2 was whether the applicant has given the Minister evidence of adequate arrangements in Australia for health insurance during the period of his intended stay. The current Tribunal noted that that was a matter that had been raised in the delegate’s decision. The current Tribunal noted that was discussed as an issue with the applicant at the hearing and that the applicant was aware that the lack of insurance was one of the reasons his application had been refused.

15. The current Tribunal records asking the applicant to provide evidence that he could meet the insurance requirements and notes that the applicant was given time to make the necessary arrangements. The current Tribunal’s reasons record that no evidence has been provided that the applicant has made adequate arrangements in Australia for health insurance during the period of his intended stay because in those circumstances, the current Tribunal found that the applicant did not meet the requirements of cl.573.225 schedule 2 of the Migration Regulations 1994. The current Tribunal found the applicant did not satisfy cl.573.225, and the decision of the delegate was affirmed.

16. The grounds of the application are as follows: 

    1. The Tribunal has erred in exercising its jurisdiction.

    Particulars

    (a) The Tribunal refused to grant an extension of time to the Applicant to provide adequate response.

    (b) The Applicant was not allowed reasonable opportunity after the hearing to provide the requisite health insurance.

17. Mr Jones, the solicitor for the applicant took the Court to the email dated 11 June 2015 seeking further time and, in particular, identified that the document referred to further time for provision of the “rest of the documents”.  The current Tribunal’s reasons are to be read as a whole and without a keen eye for error.  The reference in para.7 to the current Tribunal providing the applicant until 11 June 2015 to make his submissions was clearly a reference referring to the applicant making his submissions and providing further information.

18. It is apparent that the current Tribunal understood that the agent had requested more time for submissions and information by reason of the communication send on 11 June 2015.  The current Tribunal’s reasons for refusing to give more time was the length of time that the applicant has already had to gather that evidence.  That length of time in the present case was substantial and commenced from the time of the making the application in which the applicant asserted he had made adequate arrangements for health insurance and was raised in a letter of 24 September 2013 sent to the applicant and was also the reason for a refusal of the delegate’s decision which had occurred back on 6 November 2013.

19. The reasons of the current Tribunal for refusing to provide further time to provide health insurance information cannot be said to lack an evident and intelligible justification. The current Tribunal’s decision to refuse to provide the applicant with further time was not legally unreasonable. 

20. The Court raised with the parties whether the grant of relief in the present case was one which could be said to be futile.  The first respondent submitted that this was not a case where the first respondent contended that if there had been an error it was one that could not possibly have had any impact.  It is not necessary for the Court to determine that issue.  The Court finds there is no jurisdictional error at the time identified in the application.  The application is dismissed

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 June 2016