Perkasa v Minister for Immigration

[2014] FCCA 2784

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERKASA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2784

Catchwords:
MIGRATION – Review of Migration Review Tribunal (Tribunal) – whether Tribunal gave applicant notice of hearing – whether the Tribunal needed to comply with s.359A of the Migration Act 1958 (Cth) – whether Tribunal denied the applicant procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360A, 424A, 425A

Migration Regulations 1994 (Cth), Schedule 2, cls.572.231, 572.235

Applicant: SURYA IKA PERKASA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 700 of 2014

Judgment of: Judge Manousaridis

Hearing date: 22 October 2014

Delivered at: Sydney

Delivered on: 28 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondents: Ms A. Carr of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 700 of 2014

SURYA IKA PERKASA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 26 October 2012 the applicant applied for, but, on 18 December 2012 a delegate of the first respondent (Minister) refused to grant the applicant a Student (Class TU) visa (Student Visa).

2. One of the criteria for the granting of the Student Visa was that, at the time the decision maker is required to determine whether to grant the Student Visa, the applicant for the Student Visa had to be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is, among other things, a “principal course”.[1]

   [1] Cl.572.231 of Schedule 2 to the Migration Regulations 1994 (Cth).

3. At a hearing before the second respondent (Tribunal), the applicant informed the Tribunal he was not enrolled in a course, and he did not have a current offer of enrolment. The Tribunal was not satisfied the applicant was enrolled in, or had an offer of enrolment, in a course of study that is a principal course. The Tribunal, therefore, affirmed the decision of a delegate of the Minister.[2]

   [2] The ground on which the Tribunal affirmed the decision was different from the ground on which the delegate refused to grant the applicant the Student Visa. The delegate found the applicant had failed to comply with condition 8516 (which required the visa holder to continue to be a person who would satisfy the primary criteria for the grant of a visa). One of the primary criteria was that the applicant was enrolled in, or was the subject of a current offer of enrolment in a principal course. The delegate held that applicant did not meet cl.572.235 as he had not substantially complied with condition 8516.

4. In his application for review, the applicant raises two grounds. The first complains the Tribunal breached its obligations under s.425A of the Migration Act 1958 (Cth) (Act), by which I will assume the applicant intended to refer to s.360A of the Act. The second is that the Tribunal acted in “breach of” s.424A of the Act, which I assume the applicant intended to refer to s.359A of the Act, “and in breach of the rules of procedural fairness and natural justice”. Neither ground is particularised.

5. At the hearing before me, the two grounds were interpreted and the applicant was invited to make submissions in support of these grounds. The applicant did not make any submissions.

6. There is no substance to the grounds stated in the application. The Tribunal did send the applicant a letter in which it notified the applicant of when and where the hearing would take place. The letter was addressed to the applicant’s representative’s address, it was dispatched by prepaid post within three working days of the date of the letter,[3] and the letter was deemed to have been received on the applicant more than fourteen days before the appointed date of the hearing.

   [3] Affidavit of A.J. Carr, 2 October 2014, Annexure “A”

7. The Tribunal did not come under any obligation to do that which was required by s.359A of the Act. Nor did the Tribunal deny the applicant procedural fairness. The applicant had to satisfy the Tribunal that he met all the criteria for the grant of a Student Visa. One of those criteria was that he was enrolled in, or was the subject of a current offer of enrolment in a course of study that is a principal course. Being a matter which the applicant was required to show to the Tribunal’s satisfaction, the Tribunal was not required to give the applicant advance notice that that was an issue he was required to address.

8. In any event, the Tribunal gave notice to the applicant that whether or not he was enrolled in or had a current offer of enrolment in a course of study that is a principal course was an important issue. It was raised in the letter by which the Tribunal invited the applicant to appear before the Tribunal. The letter requested that the applicant provide a “copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa” as well as documents “that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa”. The Tribunal also raised the issue during the hearing.

9. The applicant has not made out the grounds of review stated in his application. I therefore propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 28 November 2014