MUSHKE v Minister for Immigration - [2016] FCCA 897

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUSHKE v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 897

Catchwords:
MIGRATION – Judicial review – cancellation of student visa – no jurisdiction error.

Legislation:

Migration Act 1958 (Cth), s.359A(4)(b).

Applicant:

KIRAN MUSHKE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1631 of 2015

Judgment of:

Judge Harland

Hearing date:

11 April 2016

Date of Last Submission:

11 April 2016

Delivered at:

Melbourne

Delivered on:

11 April 2016

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms Helsdon

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application filed on 16 July 2015 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1631 of 2015

KIRAN MUSHKE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(AS CORRECTED)

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review filed on 16 July 2015. It seeks to review a decision of the Tribunal which affirmed the delegate’s decision to cancel the applicant’s student visa. The applicant in his application for judicial review states that he is not happy with the decision of the department and the Tribunal, and attaches a statement which discusses his current studies, his desire for studies and his intention once he completes his studies. The application does not raise any jurisdictional error. Rather, it seeks this court engage in an impermissible merits review.
The applicant appears today without legal representation, and has not filed any written submissions. The Minister relies on the written submissions filed on his behalf. I have considered those submissions. I have also carefully considered the documents in the court book, particularly given the fact that the applicant is not legally represented today.
I will set out some of the background to this matter. On 2 August 2013 the department made its first decision that it was not satisfied that the applicant had satisfactorily explained a study gap in his education of 282 days. The delegate’s decision referred to the applicant’s evidence about being subjected to a racial attack three years before; also referred to a lack of evidence and inconsistent statements to his education provider, where he said he wanted to visit his mother in India who was having an operation.
The applicant sought to review that decision, and on 21 February 2014 the Tribunal issued a decision noting that the applicant provided some medical evidence to the Tribunal. The Tribunal was satisfied that he had been stabbed in 2009, but expressed some doubt as to why the applicant would not have returned to his treating doctor in Australia if he was still suffering pain. He gave little weight to the medical certificate from India that the applicant provided, as it said that he was unfit from September 2012 until May 2013.
The Tribunal noted that the applicant was currently enrolled in an Advanced Diploma of Hospitality, and was due to complete that course on 31 May 2014. The Tribunal determined that despite the five year poor history of study the applicant had, that given he was enrolled in a current course, the tribunal remitted to the Minister the consideration of the remaining visa criteria.
The second delegate decision was made on 14 October 2014, where the delegated noted that in the last six years the applicant had only completed an ESL certificate, and had otherwise been enrolled in short, inexpensive courses and had not progressed. The delegate noted that he had enrolled in a course shortly before applying for his student visa on 8 August 2014. The delegate found that it appeared that the re-enrolment was for the purpose of the visa rather than the applicant being a genuine student.
The applicant reviewed the delegate’s decision, and the Tribunal listed its decision on 22 June 2015. The applicant complains that he did not receive the notice of invitation to appear before the Tribunal, and only became aware of the hearing date a few days before, when he received an SMS reminder.
The application to the Migration Review Tribunal appears at CB 89 and 90. And the applicant’s migration agent is noted as the representative. In circumstances where the applicant nominates a representative to receive correspondence, he is taken to receive it if it is sent to his representative. There is no evidence that there was any change of representative prior to the hearing.
The invitation letter is addressed to the migration agent, and the email is the same as the email for the agent on the review form. Whether or not the agent forwarded the correspondence to the applicant, the Tribunal complied with its obligations under the applicable legislation.
The applicant complains that if he had been asked to provide documents he would have done so. As the Minister’s lawyer points out, the applicant was on notice from the delegate’s decision that the delegate was not satisfied with his enrolment status and other gaps and lack of progress in his education. There is nothing in the Tribunal decision itself that indicates that the applicant asked for time to supply documents. In fact, paragraph 8, which I asked the applicant about, contradicts this.
Paragraph 8 of the Tribunal’s decision states that the applicant told the Tribunal that he had enrolled in hospitality courses and had completed them, most recently being the Advanced Diploma of Hospitality. And said he completed those before he came to the Tribunal.
The Tribunal goes on to note that the applicant said that he was going to apply for a different visa, such as a 457 visa. The Tribunal observed that an enrolment or a confirmation of future enrolment is a requirement of a student visa, and put this to the applicant. The Tribunal member records that the applicant confirmed that he understood this, and confirmed that he did not have a current enrolment or confirmation of enrolment.
The Tribunal member further records that he told the applicant that in those circumstances it had no choice but to refuse the application and that the applicant indicated that he understood this.
As the lawyer for the Minister points out, in those circumstances it was inevitable that the Tribunal would affirm the delegate’s decision to refuse the applicant’s application for a student visa.
The Minister’s written submissions are detailed, and I will not repeat them here. At paragraph 26 of those submissions, the respondent raises a possible issue which is that the Tribunal did not put the relevant PRISMs record information to the applicant, but went on to note that the Tribunal was not obliged to do this in circumstances where the applicant conceded that he did not have any current offer of enrolment or confirmation of enrolment, and submits that this falls under an exception, s.359A(4)(b) of the Migration Act 1958 (Cth).
I accept that submission. I am comfortably satisfied that there is no merit in the applicant’s application, and I will dismiss the application for judicial review.
The Minister seeks costs in the sum of $5,800. That amount is below the scale. I am satisfied that it is appropriate to make the order for costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 21 April 2016

Corrections

These reasons have been amended to reflect the deletion of the word ‘prison’ from paragraph 16 and replaced with the word ‘PRISMs’.