Prasad v Minister for Immigration - [2008] FMCA 1159

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRASAD v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1159

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether applicant was properly notified of decision of Migration Internal Review Office to affirm decision of delegate of Department of Immigration and Ethnic Affairs to refuse the applicant a student visa – whether the applicant satisfied the criteria required for a student visa.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474; pt.8 div.2
Migration Regulations 1994, cl.560.222; 560.224

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470

Applicant:

MAHESH BHATTARAI PRASAD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 1423 of 2008

Judgment of:

Emmett FM

Hearing date:

30 July 2008

Date of last submission:

30 July 2008

Delivered at:

Sydney

Delivered on:

21 August 2008

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Ms T. Wong

Solicitors for the Respondent:

Ms M. Maffesanti, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1423 of 2008

MAHESH PRASAD BHATTARIAI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 7 May 2008 and handed down on 7 May 2008.
The applicant is a citizen of Nepal (“the Applicant”).
The Applicant arrived in Australia in 1995.
On 20 November 1997, the Applicant lodged an application for a student (Temporary) (Class TU) visa with the Department of Immigration and Ethnic Affairs (“the Department”) under the Act. In support of his visa application he provided a Certificate of Attendance and confirmation of enrolment from Skywell Education College.
On 15 January 1998, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a student visa.
On 12 February 1998, the Applicant lodged an application for review of the Delegate’s decision by the Migration Internal Review Office (“MIRO”).
On 20 May 1998, MIRO wrote to the Applicant, informing him that it had affirmed the decision of the Delegate. In its letter, MIRO stated “If you decide to seek review by the IRT, you must apply for review at a registry of the IRT within 28 days of the date of this letter.” The First Respondent concedes that the letter from MIRO did not satisfy the requirements of notification to the Applicant of its decision in that the letter incorrectly stated the time within which an application for review must be made.
On 13 December 2007, the Department wrote to the Applicant informing him of his rights of review and noting that this letter would be taken as having notified the Applicant of the decision of the MIRO.
On 24 December 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 7 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 3 June 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The Tribunal’s review and decision

The Applicant provided no further material in support of the review application.
On 11 March 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 8 April 2008 to give oral evidence and present arguments.
On 8 April 2008, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon his written claims.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“10. The MRT held that at the time of the decision, the Applicant did not satisfy the criteria in cl. 560.222 and cl. 560.224 of Schedule 2 of the Migration Regulations 1994 (Cth) (“Regulations”): CB 70.
11. The MRT noted that the Applicant did not produce confirmation of enrolment to undertake a full-time course of study that is a registered course or of the need to stay in Australia in connection with a course: CB 70. The MRT further held that the Applicant did not produce any financial information to suggest he had the financial ability to undertake a course without contravening any condition of the visa relating to work: CB 70. Moreover, the Applicant did not seek additional time to provide evidence to demonstrate his ability to meet cl. 560.222 and cl. 560.224 of the Regulations: CB 70.
12. The MRT affirmed the decision of the Minister's delegate not to grant the Applicant a student visa: CB 70.”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Nepali interpreter.
The Applicant confirmed that he relied on the grounds contained in an amended application filed on 21 July 2008.
The grounds of the amended application are accurately summarised by counsel for the First Respondent in her written submissions as follows:
“ a)the MRT did not comply with the rules of natural justice and procedural fairness, as the MRT took an unreasonable amount of time to re-notify the Applicant of its decision and rights to review (“Ground 1”);
b)the MRT failed to take into account the exceptional circumstances caused by the delay in the Applicant receiving notification of the decision of the Department of Immigration (“Ground 2”).”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application.
The Applicant submitted that he had not submitted any further documents in support of his application because it was such a long time since his original application. The Court asked him what documents he would have wished to have provided in support of his application. The Applicant responded that the only document would have been a letter from his education college. The Applicant stated that when he attended the hearing before the Tribunal he was asked questions about his college. However, he was not studying at the time, although, he said that had tried to enrol in many institutions but was rejected because he did not have “valid documents, being a visa and endorsement paper for college.” The Applicant also submitted that he had suffered financial hardship and anguish between 1997 and 2008 as he was unable to either study and or work.

Ground 1 – “the MRT did not comply with the rules of natural justice and procedural fairness, as the MRT took an unreasonable amount of time to re-notify the Applicant of its decision and rights to review”

At the heart of ground 1 is the Applicant’s complaint that the Tribunal failed to have regard to the fact that MIRO took “an unreasonable time” to renotify the Applicant of its decision and his review rights. True it is that the Applicant was not ultimately notified in accordance with the legislative requirements of the decision of MIRO until the Department sent the Applicant a valid letter of notification, dated 13 December 2007. Counsel for the First Respondent submitted that the effect of this second notification was that the Applicant received an additional opportunity to review the MIRO decision. Certainly, the Applicant did not suggest he had taken any step to have the MIRO decision reviewed prior to his receipt of the second valid notification letter, dated 13 December 2007, despite acknowledging that he received the first notification letter, dated 20 May 1998.
I accept the submission of counsel for the First Respondent that there was no significant delay in the matter in which the review proceeding was conducted by the Tribunal following receipt of the Applicant’s review application on 24 December 2007. The Tribunal made its decision on 16 April 2008 and handed down its decision on 7 May 2008. In the circumstances, there was no delay in the conduct of the review proceeding sufficient to amount to jurisdictional error of the type found in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470.
Further, a fair reading of the Tribunal’s decision makes clear that it referred to and identified the subclass relevant at the date upon which the Applicant’s visa application was made and accurately quoted the subclass and its conditions. The Tribunal accurately summarised the history of the Applicant’s application.
The Tribunal noted that it put to the Applicant that he had not placed any information before the Tribunal that he was financially capable of study in Australia. The Tribunal noted the Applicant’s response that he had placed information before the Tribunal about his finances, but has no money as he had been in Australia illegally for many years and he has been living off his friends who have assisted him to survive.
In particular, the Tribunal had regard to cl.560.222 of the Migration Regulations 1994 (“the Regulations”) which required the Applicant to provide, relevantly, confirmation of enrolment in a registered course. The Tribunal also had regard to cl.560.224 which required the Applicant to satisfy the Minister that he had the financial ability to undertake the course which he was enrolled without contravening any condition of the visa relating to his work. The Applicant’s visa prevented him from working.
Clauses 560.222 and 560.224 of the Regulations stated at the relevant time:
“560.222 The applicant:
(a)     produces to the Minister confirmation of enrolment to undertake a full-time course of study that:
(ii)     is a registered course; or
(ii)     comprises a unit or units of a registered course but does not lead to the grant of an award in Australia; or
(b)     produces to the Minister evidence of enrolment to undertake a full-time course of study:
(i)     as an exchange student; or
(ii)     as a student under a scholarship scheme or training program approved by the AusAID Minister; or
(iii)    as a private subsidised student, with the approval of the Education Minister; or
(c) if the application is made in Australia, the applicant:
(i)     was, at the time of the application, the holder of a Subclass 560 or 562 visa; and
(ii)     satisfies the Minister that, in connection with a registered course or with a matter arising from that course:
(A)     the relevant educational institution requires the applicant to remain in Australia during the making of a post-graduate thesis; or
(B)     the applicant is required to gain practical employment experience after graduation to obtain registration in a profession in which registration is a prerequisite for the practice of the profession in the applicant’s usual country of residence.
…
560.224(1)     Subject to subclauses (4) and (5), the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard:
(a)     to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and
(b)     subject to subclauses (2) and (3), to the applicant’s comprehension of English for the purposes of the course; and
(c) to whether the applicant intends to comply with any conditions subject to which the visa is granted;
(d)     to any other relevant matter.”
The Tribunal noted that the Applicant confirmed to it that he was in breach of condition 8202 in that he had not attended studies. Condition 8202 was a mandatory condition of his visa. The Tribunal noted that the Applicant had not enrolled in any course of study but would like to do so in the future.
In the circumstances, the Tribunal found that the Applicant had not provided any financial information to suggest that he had had the financial ability to undertake a course without contravening the condition of his visa that prevented him from working.
The Tribunal noted that the Applicant had not sought any further time to demonstrate his ability to meet cl.560.222 and cl.560.224. The Tribunal correctly found that compliance with those clauses was essential to meeting the criteria required for his visa. The Applicant’s failure to satisfy that criteria had the consequence that the Tribunal affirmed the decision under review.
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered carefully the relevant criteria that the Applicant was required to meet and made findings that were open to it on the evidence and material before it.
Otherwise, the Tribunal complied with the statutory requirements, in the making of its decision including the conduct of its review. A fair reading of the Tribunal’s decision makes clear that the Tribunal invited the Applicant to come to a hearing; explored the Applicant’s claims, understood the Applicant’s claims; put to the Applicant concerns it had about his claims and his ability to satisfy the mandatory criteria; made findings of fact that where open to it on the evidence and material before it; and, applied the correct law to its findings in reaching its conclusion that the Applicant did not satisfy the criteria required for the visa for which he had applied.
In the circumstances, a fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal had failed to comply with the rules of natural justice and procedural fairness.
Accordingly ground 1 is not made out.

Ground 2 – “the MRT failed to take into account the exceptional circumstances caused by the delay in the Applicant receiving notification of the decision of the Department of Immigration”

At the heart of ground 2 is the Applicant’s complaint that the Tribunal “failed to assess the compelling reasons” that the Applicant had not enrolled in a course of study or organise his finances to enable him to satisfy the criteria.
However, I accept the submission of the First Respondent that the Tribunal did not have any discretion to grant the Applicant a student visa where the Applicant did not satisfy cl.560.222 and cl.560.224. As stated above in these Reasons, the Tribunal stated in its decision record that the Applicant did not seek further time to demonstrate his ability to meet the criteria in cl.560.222 and cl.560.224.
As stated above in these Reasons, the Tribunal’s finding that the Applicant had not satisfied the mandatory criteria was open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, the Tribunal was bound to affirm the decision under review.
Accordingly, ground 2 is not made out.

Conclusion

In the circumstances, the Tribunal‘s decision is not affected by jurisdictional error and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 3 June 2008 is dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 20 August 2008