Pamidimalla v Minister for Immigration

[2020] FCCA 253

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAMIDIMALLA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 253

Catchwords:
MIGRATION – Application for Student (Temporary) (Class TU) (Subsequent Entrant) (Subclass 500) visa – no jurisdictional error.   

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), Sch.2, cll.500.211-218, 500.311

Cases cited:

Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501

SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64

Applicant: NEELA REDDY PAMIDIMALLA

First Respondent: MINISTER FOR CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 863 of 2019

Judgment of: Judge Jarrett

Hearing date: 6 February 2020

Date of Last Submission: 6 February 2020

Delivered at: Brisbane

Delivered on: 6 February 2020

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;

2. The application filed on 3 October, 2019 be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth);

3. The applicant pay the first respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 863 of 2019

NEELA REDDY PAMIDIMALLA

Applicant

And

MINISTER FOR CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 3 September, 2019 which affirmed a decision of a delegate of the first respondent to refuse to grant a Student (Temporary) (Class TU) Student (Subsequent Entrant) (Subclass 500) visa to the applicant.

2. This is a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). The issue for determination is whether the application raises an arguable case for the relief claimed: FCCR 44.12(1). In so satisfying the Court, the applicant is confined to the relief sought and the grounds mentioned in the application for judicial review: FCCR 44.13(1). If the Court is not so satisfied, it may dismiss the application: FCCR 44.12.

3. On 6 November, 2019 a registrar of the Court ordered that the applicant might file and serve an amended application particularising his ground of review.  He was also directed to file and serve written submissions in support of his application for review.  He has done neither of those things. 

4. When he appeared before me this morning he sought an adjournment of the proceedings because he says he has had to return to India between December and January of this year because his grandfather was unwell and subsequently passed away.  I refused the adjournment on the basis that I was unpersuaded that the applicant had not had sufficient time to prepare for this hearing.  There was a period between the directions hearing and when he left Australia to go to India in which he said he instructed or provided documents to lawyers.  He then returned to Australia in January but he gave no indication that he had done anything useful in respect of his application since returning. 

5. The first respondent has filed written submissions.  The first respondent submits that the application does not disclose an arguable case for the relief claimed and should be dismissed.

Background

1. The applicant is a citizen of India.  He arrived in Australia in June, 2013.  He held a Student (Class TU) (Subclass 573) visa which was due to expire in November, 2017.  He returned to India in March, 2016.  On 26 March, 2016 he married his wife.  He returned to Australia in April, 2016.

2. On 24 November, 2016 the applicant’s wife was granted a Student (Temporary) Class TU) Student (Subsequent Entrant) (Subclass 500) visa and she joined him in Australia in December, 2016.

3. On 24 November, 2017 the applicant applied for his own Student (Temporary) (Class TU) Student (Subsequent Entrant) (Subclass 500) visa on the basis that he was a member of the family unit of his wife.  As the second respondent explains in its reasons, at the time of his application, visa Class TU contained two subclasses, namely Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

4. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth). The primary criteria (cl.500.211–cl.500.218) must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need only satisfy the secondary criteria (cl.500.311–cl.500.318). The applicant in the present case needed to meet the secondary criteria.

5. One of the secondary criteria, was cl.500.311, which was in the following terms:

   500.311

   The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

   (a) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

   (i) the primary person's application under subregulation 2.07AF(3); or

   (ii) information provided in relation to the primary person's application under subregulation 2.07AF(4); or

   (b) the applicant became a member of the family unit of the primary person:

   (i) after the grant of the student visa to the primary person; and

   (ii) before the application was made.

6. On 7 February, 2018 a delegate of the first respondent refused to grant the applicant the visa on the basis that he did not satisfy cl.500.311(a)(i) of Schedule 2 to the Regulations. The delegate found that the applicant and his wife were married prior to the grant of the wife’s student visa but that their marriage was not declared in her student visa application. Rather she had declared that her relationship status was “never married” and she did not update her relationship status at any time. The applicant’s wife was obliged to include the name, date of birth and citizenship of each person who was a member of her family unit at the time of her application in her visa application: reg.2.07AF(3) of the Regulations. She did not do so.

7. Accordingly, the applicant did not satisfy cl.500.311(a)(i) because, having married his wife before her visa application and become a part of her family unit, his details were not included in her application under reg.2.07AF(3).

8. On 26 February, 2018 the applicant applied to the Tribunal for review of the delegate’s decision.  On 8 August, 2019 the Tribunal invited the applicant to attend a hearing on 26 August, 2019 which he and his wife attended.

9. On 3 September, 2019 the Tribunal affirmed the delegate’s decision not to grant the applicant the visa. It too, found that the applicant did not and could not satisfy cl.500.311(a)(i) of Schedule 2 to the Regulations.

10. In the course of its reasons, the second respondent recorded the applicant’s wife’s evidence that she did not declare the applicant as her husband on the basis of advice from her friends and they did not tell her she should do so.  She says that her migration agent did not know that she was married and did not advise her to disclose her marital status.  She also said that she had completed a Master’s Degree at Charles Sturt University whilst on a student visa, although that visa had now expired.  She had since applied for a Temporary Graduate visa and was currently on a bridging visa.

11. The second respondent recorded that it was undisputed that the applicant was not included as a dependant on his wife’s student visa application.  Notwithstanding the explanations given by the applicant and his wife, the second respondent considered that the onus on making a correct application rested with the applicant, even if poorly advised by a migration agent.  As the applicant was not included on his wife’s student visa application, the second respondent concluded that he could not satisfy the Regulations. 

12. In addition, the second respondent otherwise noted that the applicant’s wife’s student visa had expired during the course of the second respondent’s review but did not consider that issue further as the second respondent had already concluded that the applicant did not satisfy an essential criterion for the grant of the visa.

The application for review

1. The application for review sets out a single ground of review accompanied by what appears to be submissions.

2. The ground of review is in the following terms:

   The Administrative Appeals Tribunal did not provide enough weight to the situation I explained as per my circumstances.

3. Thereafter in his grounds of application follows a narrative of events, a plea of mistake on the basis that the applicant and his wife were poorly advised by their friends and their migration agent and the expression of a desire to remain in Australia to support his wife.  The submissions conclude:

   With respect to laws and conditions, the above-mentioned reasons and circumstances are true to my knowledge and I feel I should be given a chance before I return to my home country. I would like to request the officer to kindly revaluate my case. I hope I would be given a chance to prove my authenticity and my previous situation. I believe, enough weight age should be kept on my circumstances and previous conditions, and I request the officer to reconsider my case so that a right decision will be imposed on my application.

4. The ground relied upon by the applicant is unparticularised and devoid of content.  At best it is a complaint about the weight that the second respondent accorded to the factual circumstances relied upon by the applicant to explain his wife’s failure to complete her visa application accurately.

5. But those arguments are not to the point. The Regulations provide the second respondent with no discretionary basis to grant the visa if the mandatory criteria for the grant of the visa are not met. Nor does the Act: s.65 of the Migration Act1958 (Cth).

6. To the extent that the applicant relies upon poor advice from friends and poor assistance from a migration agent to he or his wife, his case does reveal jurisdictional error.  It is not enough that there was bad or negligent advice from friends or the applicant’s agent: SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64 at [53] and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [21].

7. I accept the first respondent’s submission that the applicant wishes only to engage in impermissible merits review.

8. For completeness, I set out some further submissions from the first respondent:

   21 Otherwise, the Tribunal clearly complied with its procedural fairness obligations under Division 5 of Part 5 of the Act. By invitation dated 8 August 2019, the applicant was invited to attend a hearing before the Tribunal on 26 August 2019 in compliance with s 360 and 360A of the Act, which he did. The applicant was on notice from the delegate’s decision and the Tribunal’s questioning at the hearing that the determinative issue on review would be whether he satisfied cl 500.311.

   No breach of s 360 is apparent.

   22 Further, there was no information which was required to put to the applicant pursuant to s 359A of the Act. In reaching its decision, the Tribunal relied on written information provided by the applicant to the department, written information provided by the applicant to the Tribunal and the applicant and his wife’s oral evidence. These three matters fell within the exceptions in s 359A(3)(ba) and s 359A(3)(b) of the Act. No breach of s 359A is apparent.

9. Those submissions are plainly correct.  The reasons of the second respondent do not reveal jurisdictional error.

Conclusion

1. The applicant is unable to establish jurisdictional error on the part of the second respondent.   The application does not raise an arguable case for the relief claimed.  The application must be dismissed with costs.

2. Since these proceedings were commenced, the name of the first respondent has changed.  It is appropriate to amend the name of the first respondent accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on

Associate:

Date: 10 February, 2020