POUDYAL v Minister for Immigration

[2015] FCCA 2444

FEDERAL CIRCUIT COURT OF AUSTRALIA

POUDYAL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2444

Catchwords:
MIGRATION – Application for juridical review – whether the applicant could satisfy criterion for subclass 573 Student visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359AA

Migration Regulations 1994 (Cth), cl.573.231 of Sch.2, cl.573.321

First Applicant: NEELAM POUDYAL

Second Applicant: KUMAR PRASAD PAUDEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2598 of 2014

Judgment of: Judge McGuire

Hearing date: 31 August 2015

Date of Last Submission: 31 August 2015

Delivered at: Melbourne

Delivered on: 24 September 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. Leave be granted to amend the name of the second respondent to ‘Administrative Appeals Tribunal’.

2. The application for judicial review filed 1 April 2015 be dismissed.

3. The applicant pay the first respondent’s costs in a quantum of $3416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2598 of 2014

NEELAM POUDYAL

First Applicant

KUMAR PRASAD PAUDEL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made 14 November 2014 affirming a decision of the Minister’s Delegate made 5 February 2014 refusing the grant to the principal applicant of a Subclass 573 student visa (“the Visa”).

2. The primary applicant appears in person. The second applicant is a dependent of Ms Poudyal. 

3. The application sets out two broad matters of complaint being:

   (i)     The Tribunal made an error in making a decision on my case;

   (ii)    Natural justice was not provided on my case.

4. The applicant provided a written submission/affidavit in support of her application.  She refers to her father’s illness and subsequent death and that this had required her to travel to Nepal and affected her studies and attendance at her enrolled course. She says that she was enjoying and making good effort in her studies in commercial cookery prior to her father’s illness.  She says that her concentration on her studies was then impacted by her father’s issues and that she flew to Nepal where she stayed for approximately two months. She deposes further absence in her studies and that the college reported the same to the Department of Immigration.  The applicant says that she has a young child (the second applicant) and deposes as to the potential difficulties for the applicants if required to return to Nepal.

Background:

1. The applicant is from Nepal.  She first arrived in Australia in October 2008 on a student visa.  She completed a series of courses but did not undertake studies for a 13-month period between 27 August 2011 and 1 October 2012.  On 30 August 2013 the principal applicant made further application for a Subclass 573 student visa.

Tribunal’s Determination:

1. The Tribunal noted an invitation to the primary applicant to attend at the hearing and requested that documents be provided to the Tribunal in support of her visa application and, specifically, as to a current certificate of enrolment. 

2. The Tribunal noted written submissions by the applicant to the Tribunal effectively in the terms of the matters set out above.  She asserted that she was enrolled in a Bachelor of Business course specialising in hospitality at KAPLAN Business School.

3. The Tribunal put to the principal applicant, pursuant to s.359AA of the Migration Act 1958 (“the Act”), information from the Department’s PRISMS database to the effect that her enrolment had been cancelled on her own notification to the college that she had discontinued her studies and was not the recipient of a current certificate of enrolment at the time of the hearing.

4. The Tribunal’s reasons disclosed that the applicant was given time to respond to the above s.359AA information in respect of enrolment. She asserted that she remained enrolled in the Bachelor of Business program (Hospitality). The Tribunal’s reasons at [13-14] disclose the following:

   [13] The applicant stated that she was enrolled, and that she had not cancelled her enrolment. The applicant stated that she would get information from her college to show she had not cancelled her enrolment.

   [14] On 14 November 2014 the applicant provided a letter from KAPLAN Business School stating that the applicant was enrolled as a full-time student from 19 March 2014 until a cancellation date of 11 August 2014, and that the applicant attended 45% of her classes during her course.

5. The Tribunal’s reasons state that the applicant did not provide evidence of enrolment after 11 August 2014.

6. The Tribunal concluded, therefore, that the primary applicant did not meet the requirement of cl.573.231 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) in that she be enrolled in, or held an offer of enrolment, in an applicable course of study.[1] The Tribunal moved to affirm the Delegate’s decision. 

   [1] Migration Review Tribunal’s Reasons, 14 November 2014 at [15-16].

Application to this Court:

1. The applicant did not further particularise or provide argument in support of the second ground of her application, being that she was not afforded natural justice.

Considerations:

1. It is clear that the Tribunal offered the applicant the opportunity to provide post-hearing evidence in respect of the crucial issue, being whether she held a certificate of enrolment or an offer of such enrolment. The Tribunal had the benefit of the applicant’s attendance at the hearing and her written submissions. I am satisfied that the applicant was afforded procedural fairness and natural justice.

2. Cl.573.321 of the Regulations provides a criterion that the primary applicant be enrolled in or subject to a current offer of enrolment of study in a specified course.

3. The Tribunal had before it, and sought submissions from the applicant, in respect of the PRISMS information that her course had been cancelled as of 11 August 2014. The Tribunal was entitled to make findings in accordance with that evidence.  It found that the mandatory visa requirements were not satisfied.

4. As such, I find no error in the process or determination of the Tribunal and the application should be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 24 September 2015