Pandey v Minister for Immigration

[2014] FCCA 453

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANDEY & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 453

Catchwords:
MIGRATION – Student visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Failure to consider a matter relevant to the exercise of a discretion to adjourn Tribunal hearing – jurisdictional error.

Legislation:

Migration Act 1958, s.474

Migration Regulations 1994, reg.1.03, cls.572.22, 572.221, 572.222, 572.223 of sch.2

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

First Applicant: MENUKA PANDEY

Second Applicant: BILAL CHEEMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1275 of 2013

Judgment of: Judge Cameron

Hearing date: 3 March 2014

Date of Last Submission: 3 March 2014

Delivered at: Sydney

Delivered on: 3 March 2014

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue bringing the second respondent’s decision of 14 May 2013 into this Court to be quashed.

2. A writ of mandamus issue directing the second respondent to re-determine according to law the applicants’ application made to it on 31 January 2011.

3. The first respondent pay the applicants’ costs fixed in the amount of $665.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1275 of 2013

MENUKA PANDEY

First Applicant

BILAL CHEEMA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant, who is a citizen of Nepal, applied for a student subclass 572 visa on 2 December 2010. Her husband, the second applicant, was included in that application as a member of her family unit. On 13 January 2011 the first applicant’s application was refused by a delegate of the first respondent (“Minister”) on the basis that she did not satisfy the requirements of cl.572.223 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

Relevant legislation

1. The criteria for the grant of a Student (Temporary) (Class TU) subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. At the time the delegate made her decision, the issue before her was whether the first applicant met the financial capacity criterion in cl.572.223 of sch.2 to the Regulations. However, the issue before the Tribunal was whether the first applicant had provided a certificate of enrolment for an acceptable course. At the time the Tribunal made its decision, cl.572.222(1) of sch.2 to the Regulations required, as a time of decision criterion, that the first applicant have given to the Minister a certificate of enrolment relating to her undertaking an acceptable course. The same requirement also applied to subclass 571, 573, 574 and 575 visas, whilst the requirement for a subclass 570 visa was submission of a certificate of enrolment relating to undertaking an acceptable English language intensive course for overseas students.

2. At the relevant time reg.1.03 defined a certificate of enrolment as:

   a paper copy, sent by an education provider to an applicant for a student visa, of an electronic confirmation of enrolment relating to the applicant.

   It went on to define an electronic confirmation of enrolment as:

   … confirmation that:

   (a)states that the applicant is enrolled in a registered course; and

   (b)is sent by an education provider, through a computer system under the control of the Education Minister, to:

   …

   iii)     any office of Immigration in Australia.

Background facts

1. In support of her application the first applicant provided to the Minister’s department (“Department”) copies of a number of certificates of enrolment which indicated that she was undertaking an English course.  The confirmations of enrolment also indicated that she proposed to undertake a Diploma of Management and an Advanced Diploma of Management which would end on 13 January 2012.

2. On 27 March 2013 the Tribunal wrote to the applicants inviting them to attend a hearing on 14 May 2013.  The Tribunal’s letter also invited the applicants to provide, no later than two working days before the hearing, further evidence on their application, including a certificate of enrolment for the first applicant and evidence of their financial capacity.

3. At the Tribunal hearing held on 14 May 2013, the first applicant said that she had completed her studies in January 2013 and did not have a current certificate of enrolment.  The applicants said that after the first applicant had completed her studies, the second applicant had found a sponsor for a subclass 457 visa and that after they had applied for that visa, their migration agent had told them that the first applicant no longer needed a certificate of enrolment.  The applicants stated that they may have misunderstood or have been misguided by their migration agent and that the first applicant would have continued studying if she had known that she was required to do so.  The first applicant also said that she had received the Tribunal’s invitation to provide further evidence only shortly before the hearing and would need more time to provide further evidence on her application.

The Tribunal’s decision and reasons

1. The Tribunal found that the first applicant did not meet the criteria for the grant of a subclass 572 visa or for any other Student (Temporary) (Class TU) visa subclass.  In this connection, the Tribunal noted that the first applicant had not provided a current certificate of enrolment and that there was no evidence before it which indicated that she met any of the exceptions to the requirement to provide one.  It noted that although the first applicant had previously provided certificates of enrolment to the Department, the dates on those had passed and therefore they were not sufficient to meet the requirements for the grant of a temporary student visa.

2. In relation to the applicants’ request for additional time in which to provide further evidence, the Tribunal considered that the applicants had had ample opportunity to provide a certificate of enrolment relating to the first applicant and any other further evidence.  It found that its letter of 27 March 2013 was taken to have been given to the applicants on that date because it had been sent by fax to the last known fax number of their migration agent, who was their authorised recipient.  The Tribunal also noted that the applicants’ evidence indicated that their focus was no longer on the first applicant pursuing studies but on pursuing a subclass 457 visa based on the second applicant’s employment.  In those circumstances, the Tribunal decided not to grant the applicants additional time to provide further evidence in relation to the first applicant’s student visa application.

Proceedings in this Court

1. In the application commencing these proceedings the applicants alleged:

   1.The responded comited and error of law in refusing my application my respondent be order to decide the application recording to law and grand the aplica visa.

   2.The department in corectly refous my applicat as it did not consider the relivent information provided.

   (errors in original)

2. Neither of the grounds set out in the application was particularised and thus they lack substantive content. In fact, neither indicated a basis upon which the Tribunal’s decision should be set aside. As to the first of them, the Tribunal’s decision that the review application was to fail because the first applicant had not provided a relevant certificate of enrolment was a correct application of the Regulations. As to the second ground, contrary to what was alleged, the Tribunal did consider the evidence before it, or rather the lack of it, necessary to satisfy the relevant visa criterion.

3. However, that is not an end to the matter.  I raised with the Minister during addresses the question of the Tribunal’s exercise of its discretion concerning whether to allow the applicants additional time to furnish evidence of the first applicant’s enrolment.  The Tribunal based its decision to refuse the applicants’ request for additional time to provide that evidence on two grounds.  The first was that the applicants had had adequate time to provide a certificate of enrolment.  The second was, in essence, that the first applicant was not a genuine student.

4. The Tribunal was correct to conclude that its invitation letter and request for further information was deemed to have been given to the applicants at the time it identified and thus that they had had some time in which to gather the evidence in question and place that evidence before it.  Indeed, the applicants’ evidence to the Tribunal concerning their understanding of the advice they had been given by their migration agent suggested that no amount of time would have made any difference.

5. However, of greater significance in the resolution of this matter is the Tribunal’s consideration of whether the first applicant was a genuine student.  It seems to be implicit in the Tribunal’s reasoning that the first applicant would only be seeking to enrol in a course in order to maintain the visa status of herself and her husband.  That is to say, because the applicants said that if they had realised that the first applicant needed to be enrolled in a course of study then she would have enrolled in one, that meant that she was not a genuine student. 

6. However, that is not necessarily the case. The question was whether the first applicant was going to genuinely undertake study, not why she was going to study. Clause 572.22 of sch.2 to the Regulations refers in three locations to applicants being genuine students. In cl.572.221(2)(b)(i)(A) it talks of the Minister having no reason to believe that an applicant is not a genuine student; in cl.572.223(1) it talks of the Minister being satisfied that an applicant is a genuine applicant for entry and stay as a student for various reasons which are not particularly relevant to present considerations; and in cl.572.223(2)(b) again the Regulations speak of the Minister being satisfied that an applicant is a genuine applicant for entry and stay as a student, having regard to “any other relevant matter”.

7. The way the relevant clause is drawn indicates to me that the concern of the Regulations is that a person who is granted a student visa actually undertakes the study for which the visa is granted. The clause does not appear to me to be concerned with what motivates a person to be a student. When determining whether to grant the applicants more time to furnish evidence of enrolment, the Tribunal only considered what it perceived to be the reason why the first applicant wanted to enrol in further study, not whether she would genuinely undertake that study. It did not ask her anything about that and so could not have known anything about it.

8. It might not have been entirely irrelevant to the Tribunal’s considerations whether any further enrolment was just a device to maintain the applicants’ visa status, but the failure to consider an issue relevant to the genuineness of the first applicant’s intention to be a student, namely whether she would genuinely undertake the study for which she might enrol, satisfies me that the Tribunal’s exercise of discretion on this occasion miscarried.

Conclusion

1. Because the Tribunal’s decision to affirm the decision of the delegate was based on a miscarriage of discretion, I find that that decision was affected by jurisdictional error. 

2. Consequently, the Tribunal’s decision will be set aside and the matter returned to it to be determined according to law.  There will be orders accordingly.

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

Associate: 

Date:  11 March 2014