Puri v Minister for Immigration

[2017] FCCA 2860

FEDERAL CIRCUIT COURT OF AUSTRALIA

PURI & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2860

Catchwords:
MIGRATION – Student visa – Tribunal not satisfied that relevant criteria satisfied – no basis for interfering in those conclusions.

Legislation:

Migration Act 1958 (Cth), s.65(1)

Migration Regulations 1994 (Cth), Sch.2, cls.570.223, 571.232, 572.223, 572.231, 573.231, 574.231, 575.231

Cases cited:

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

First Applicant: POOJA PURI

Second Applicant: PRADEEP PURI

Third Applicant: AARADHYA PURI

Fourth Applicant: ANSHIKA PURI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE REVIEW TRIBUNAL

File Number: MLG 1419 of 2016

Judgment of: Judge Wilson

Hearing date: 11 October 2017

Date of Last Submission: 11 October 2017

Delivered at: Melbourne

Delivered on: 11 October 2017

REPRESENTATION

Applicant in person

Counsel for the First Respondent: Ms J. Lucas

Solicitors for the
First Respondent: DLA Piper Australia

ORDERS

1. The application filed on 5 June 2017 is dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1419 of 2016

POOJA PURI

First Applicant

PRADEEP PURI

Second Applicant

AARADHYA PURI

Third Applicant

ANSHIKA PURI

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. After filing the amended application on 5 June 2017, pursuant to consent orders made by me, the applicants sought orders quashing a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 16 June 2016.[1] The Tribunal affirmed a decision made by the Minister’s delegate not to grant student visas to the applicants.

   
   

   Mrs Pooja Puri was the primary visa applicant; her husband Pradeep Puri and their two daughters were secondary visa applicants.

   [1] Court book filed 21 October 2016 at pp.215-217.

2. The Tribunal decided not to grant the visas essentially by reason of its conclusion that Mrs Puri did not meet the requirements in schedule 2 of the Migration Regulations 1994 (Cth) (“the regulations”) for visa subclasses 570, 571, 572, 573, 574 and 575.

3. In their amended grounds of review, the applicants raised two main contentions. First, they said the Tribunal misconstrued the phrase “enrolled in a course of study”. Second, they said the Tribunal made a critical finding in respect of which it had no evidence.[2]

   [2] Amended application filed 5 June 2016.

4. As particulars, the applicants contended that the evidence before the Tribunal was that at the time of the decision, the period of instruction in the course in which the primary applicant was enrolled had concluded and the applicant was awaiting her results with the consequence that there was no evidence before the Tribunal to support a finding that the primary applicant was not enrolled at the time of the Tribunal’s decision.

Synopsis

1. In my view, both grounds of review failed.

Relevant factual setting

1. On 10 July 2014 the applicants applied for the visas. On

   
   

   4 December 2014 the Minister’s delegate decided to refuse to grant the visas.[3] That was mainly for the reason that the delegate was not satisfied that the primary visa applicant intended genuinely to stay temporarily in Australia. The delegate found that the primary visa applicant did not meet the requirements of clause 570.223(1)(a) of schedule 2 of the regulations.

   [3] Court book filed 21 October 2016 at pp.109-116.

2. The first applicant appeared before the Tribunal on two occasions.
   The first was in March 2015. It seemed from the Tribunal’s reasons that no decision was made on that occasion; instead, the applicants were invited to attend a second hearing 15 months later, on 8 June 2017, which they attended and gave evidence and presented submissions.

3. The Tribunal’s reasons were short, 19 paragraphs in total. The Tribunal correctly identified the issue for determination as being whether the primary visa applicant met the criterion in clause 572.223 of the schedule 2 of the regulations. The Tribunal posed the issue at paragraph 6 of its reasons in the following terms –

   However, the issue before the Tribunal is whether, at the time of decision, Mrrs Puri (sic) is enrolled in, or is the subject of a current offer of enrolment in, a course of study that meets the requirements of the Regulations.

4. At paragraph 7 of its reasons the Tribunal recited that clauses 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 required that, at the time of the decision, an applicant had to be enrolled in, or the subject of a current offer of enrolment in, a course of study that was a principal course as specified in regulation 1.40A for the subclass at the time of the application. The Tribunal identified subclass 572 as being relevant to the primary visa applicant.

5. The Tribunal’s reasons included, in paragraph 9, a recital of the fact that at the second hearing, Mrs Puri stated that she had then recently completed her studies and was awaiting her results. I mention that at this juncture because the applicants raised, in both grounds of review, that the primary visa applicant had completed or concluded her studies and she was awaiting her results.

6. The Tribunal also recorded that the primary visa applicant told the Tribunal that upon receiving her results, she and her husband would return to India. At paragraph 15 of its reasons the Tribunal recorded that the primary visa applicant told the Tribunal that she was then not enrolled and did not intend to enrol in future studies, but intended instead to return to India.

7. The Tribunal found that the primary visa applicant did not meet an essential requirement in schedule 2 for a visa in any of the subclasses 570, 571, 572, 573, 574 and 575. The Tribunal decided to affirm the decision of the delegate.

In this Court

1. On 5 July 2016 the applicants sought judicial review of the Tribunal’s decision. The grounds were not well cast. A Registrar ordered the case to proceed under the show-cause procedure, returnable on 7 June 2017. On 5 June 2017 – that is to say, two days prior to the show cause hearing – the parties agreed that the case would proceed at a

   
   

   full hearing and that the applicants would provide their written submissions two weeks prior to 11 October 2017. They did not do so within the time ordered, or at all. Very recently, the solicitors who had represented the applicants ceased acting for them.

2. While two grounds of review were separately agitated, in reality they focused on a similar issue, namely, the notion that the primary visa applicant applied for the visa at a time when she was enrolled in studies and that she was awaiting results (I infer, examination results).

Ground 1

1. On behalf of the Minister, Ms Lucas of counsel contended that the evidence revealed that on the day the Tribunal decided this case,

   
   

   16 June 2016, there was no evidence that the primary visa applicant was enrolled in, or the subject of a current offer of enrolment in,

   
   

   a course of study, being the critical words of clause 572.231 of schedule 2 of the regulations. Ms Lucas submitted that the evidence revealed that the primary applicant’s enrolment was in a Diploma of Business that had a course end date of 25 April 2016. As that date had passed by the date the Tribunal hearing in June 2016 took place,
   clause 572.231 was not met.

2. To my mind, that submission was correct. But that was not the end of the matter. In paragraphs 11 and 12 of its reasons, the Tribunal recorded that it explained to the primary visa applicant that without enrolment, she was not eligible for the grant of a student visa.

   
   

   The Tribunal recorded that she understood and accepted the position. Then, in paragraph 15 of its reasons, the Tribunal recorded the following –

   Mrs Puri told the hearing she was not currently enrolled and did not intend to enrol in future studies in the immediate future but planned returning to India with her husband and children.

3. To my mind, that concession was clear and unequivocal. The primary applicant told the Tribunal she was not then currently enrolled. She was not coerced into making that concession. The Tribunal was entitled to proceed on the truth of that concession, it having been freely given. In my view there was no merit in ground 1 and it failed.

Ground 2

1. Largely similar factual considerations applied to ground 2 as those that applied to ground 1. In essence, the applicants complained that the Tribunal made a critical finding in respect of which it had no evidence.

2. The Minister contended that the point was misconceived because the grant of a visa under the Migration Act 1958 (Cth) (“the Act”) required satisfaction of the matters specified in s.65(1) of the Act and that a visa was required to be refused if the decision-maker was not “affirmatively satisfied” that the criteria for the grant of the visa had been met, as was held by the Full Court of the Federal Court of Australia in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs.[4]

   [4] [2004] FCAFC 225 at [15].

3. Here, clause 572.231 of schedule 2 of the regulations set out the matters the primary visa applicant needed to meet. One was that the primary visa applicant was enrolled in, or was the subject of a current offer of enrolment in, a course of study at the time of the Tribunal’s decision. The primary visa applicant failed to satisfy the Tribunal on that point. She failed, therefore, to meet clause 572.231. In those circumstances, it seemed to me that the Tribunal was correct in its decision.

4. Today, Mrs Puri told me she did not know that when she was before the Tribunal in June 2016 she had to prove the fact of her enrolment or the other elements applicable to a 572 visa applicant. Her want of knowledge on the point is not a matter that goes to the foundation of jurisdictional error. Ground 2 failed.

Conclusion

1. This application for judicial review is dismissed.

2. I order the applicants to pay the costs of the Minister.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 22 November 2017