RAM v Minister for Immigration
[2015] FCCA 2972
•21 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2972 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugee Division) – Student (Temporary) (Class TU) visa – procedural fairness – whether the Tribunal failed to take into account a relevant submission – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 418, 476, Migration Regulations 1994 cl.570.227 |
| SZION v The Minister for Immigration (2011) 191 FCR 123 |
| First Applicant: | RAKESH RAM |
| Second Applicant: | SHUDKIRTI LOTA SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1479 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 21 October 2015 |
| Date of Last Submission: | 21 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2015 |
REPRESENTATION
| The applicants appeared in person |
| Solicitors for the Respondents: | Ms N Blake Clayton Utz |
ORDERS
The application is dismissed.
The first and second applicants pay the first respondent’s costs fixed in the sum of $6646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1479 of 2015
| RAKESH RAM |
First Applicant
| SHUDKIRTI LOTA SHARMA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for the Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal on 23 April 2015 affirming the decision of the delegate not to grant the primary applicant a Student (Temporary) (Class TU) Visa. The applicants are Fijian nationals and applied for a student visa on 17 June 2014 in order to undertake study in Australia. At the time of the application, the primary applicant was the holder of a (subclass 600) visitor visa. On 14 December 2014, the delegate refused to grant the applicants a student visa on the basis that the primary applicant did not satisfy cl.570.227 of Schedule 2 of the Migration Regulations 1994 which requires that there be exceptional circumstances for the grant of the student visa onshore.
The delegate noted that he had requested the applicant to provide exceptional reasons for the grant of the visa and that the applicant had not responded. In fact, a member of the applicant’s family sent an email to the Department on 9 July 2014 at 11.55 am in response to a communication from the Department identifying that the sender of the email could not be identified in the system and it was necessary to provide a client ID, full name, date of birth and passport number. The member of the applicant’s family had earlier tried to send in a submission in respect of exceptional reasons but there was no identifying detail to permit the Department to identify who the sender was or to what file it related.
The email sent on 11 July 2014 at 11.55 am does purport to identify the file name for the primary applicant in respect of a student visa and refers to the requested details. Whilst it is not clear whether the details which did provide the date of birth and passport were in the email chain or in an attachment, it is accepted by the first respondent that the Department received that communication. The submission document that was annexed identified the following:
1. I am happy to meet all expenses such as, school fees, and this is of course to benefit Australia economy as well as I will be meeting all weekly expenses for basic needs, which will benefit Australia, but the most importantly , completing my qualification will benefit Australia as when I will return to my country Fiji, with Australia skills and qualification so i will be able to work in a Australian company in Fiji such as lotus I Jk & Companies and Development Cooperation.
2. Here in Australia, I have my wife's parents, sister and they love Australia and are settled and when 1 came to Australia I meet the Australian people, their skills and qualification, that give me a great opportunity to this early course in English ,which is not done in Fiji. So I take this opportunity to consider not only English but learn much more about Australian people and products, especially at government level and very sources of information in order to prepare my own vision and mission to be carried out to~ the Australian companies in Fiji.
3. In Fiji I was a part time worker as a labor, so I take this opportunity to study here and build a good relationship with Australian supplies so that I can take my qualifications and skills to Fiji and work as a full time worker in other hand I can operated my own business or take the big projects in which I can promote or get the products from here.
It is common ground that that submission document was never provided to the Tribunal in relation to the conduct of its review. The applicant contended that the Tribunal should have had regard to that submission document and sought to rely upon the provision of the same to the Department and the failure by the Tribunal to have regard to the same as being a jurisdictional error by the Tribunal.
The application of the applicant also identified three grounds:
1. The Migration Review Tribunal is affected by error of law. The member failed to take into account my enrolment, my studies and payment and the fact that the Dept of Immigration initially encouraged me to apply.
2. I ask the honourable Court to provide copy of my file to enable me to provide particulars to support my case.
3. The Migration Review Tribunal denied me natural justice by the way conducting the hearing with other applicants. I deserve a private hearing as I paid the full fee of $1604 and the Tribunal failed to give me a proper hearing.
On 8 December 2014, the applicant applied to the Tribunal for a review of the delegate’s decision. The applicant attended a hearing before the Tribunal on 23 April 2015 and stated it had not occurred to him before he came to Australia that he wanted to study here and it was only after he witnessed the higher standards of education in Australia that he decided to obtain some qualifications in Australia before he returned to Fiji. The applicant identified that these qualifications would enhance his employment opportunities in the future. The applicant also contended that whilst studying he would be contributing to the Australian economy.
At the time of the Tribunal’s decision on 23 April 2015 cl.570.227 of the Regulations provided:
If:
(a) the application was made in Australia; and
(b) subject to clause 5 70.22 7 A, the applicant is subject to the highest assessment level for the relevant course of study; and
(c) at the time of the application, the applicant met the requirements of clause 570.211:
(i) as the holder of a visa of one of the following classes or subclasses:
…
(T) Subclass 600 (Visitor); or
(ii) as the holder of a special purpose visa; or
(iii) as the holder of a visa of one of the following subclasses:
... ; or
(iv) as a person
A. who was not the holder of a substantive visa; and
B. who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);
the applicant establishes exceptional reasons for the grant of a Subclass 570 visa.
The Tribunal summarised the evidence that the primary applicant had given and the procedure during which the Tribunal raised the issue that the applicant’s reasons did not appear to be in any way exceptional and that the economic benefits to the economy would not be sufficiently significant to constitute exceptional reasons. The Tribunal indicated that the relevant issue in the case was whether the primary applicant had established exceptional reasons for the grant of the student visa and in referring to the fact that the Tribunal had considered the applicant’s circumstances the Tribunal relevantly found:
9. …The applicant stated that he wants to study in Australia so he can improve his employment opportunities in the future. The Tribunal accepts that the applicant wants to remain in Australia for these reasons. However, although the Tribunal accepts that these are understandable reasons for the applicant wishing to remain in Australia, it is not satisfied that they constitute exceptional reasons for the grant of a student visa. The Tribunal finds that the applicant’s wish to study in Australia is a common reason for persons seeking a student visa The Tribunal has considered the applicant’s claim that he will be contributing to the economy while he is studying in Australia. However, it is not satisfied the the economic benefits to Australia would be sufficiently significant to constitute exceptional reasons for the grant of the student visa. The Tribunal is not satisfied that these reasons are special or unusual which would make them exceptional for the purposes of cl.570.227 of Schedule 2 of the Regulations.
10. The Tribunal finds that none of the reasons put forward by the applicant are 'exceptional' in the ordinary meaning of the word or that they constitute exceptional reasons for the grant of a Subclass 570 visa. It therefore finds that the applicant does not satisfy cl. 570.227 of Schedule 2 of the Regulations because he did not establish exceptional reasons for the grant of the visa.
11. The other subclasses within the Class TU visa class have equivalent provisions as those discussed above. For the reasons given, the Tribunal finds that the applicant does not meet the requirements for any of the other student visa subclasses.
12. The Tribunal finds in relation to the second named applicant that she applied as a member of the first named applicant’s family unit. As the first named applicant does not satisfy the requirements for the visa, his wife cannot satisfy the requirements for the visa.
I accept the first respondent’s submission that ground 1 fails to make out any jurisdictional error and that the Tribunal clearly took into account the applicant’s circumstances in determining whether or not there were exceptional reasons. I accept the first respondent’s submission that ground 2 fails to identify any jurisdictional error in relation to the request for the applicant’s file. In relation to ground 3, the Migration Review Tribunal generally holds hearings in public, not in private, and the bare allegation of a denial of natural justice in ground 3 fails to make out any jurisdictional error.
Insofar as the applicant has raised the issue of the failure of the Tribunal to take into account the submission which the first respondent accepts was sent to the Department, I accept the first respondent’s submission that there was nothing in the document that was sufficiently cogent in relation to exceptional reasons that could give rise to any finding that the content was material so as to be capable of giving rise to some error of law or denial of procedural fairness.
It is clear from the Tribunal’s reasons that the substance of the applicant’s written submission which was not before the Tribunal was, in substance, the same as the circumstances articulated by the applicant before the Tribunal. For this further reason, there is no materiality or practical injustice in the absence of the Tribunal having the benefit of the written submission by the applicant as to exceptional reasons. I find that the written submission could not have affected the outcome of the review and that even if the submission had been before the Tribunal the decision would inevitably have been the same.
Further, I accept the submission of the first respondent that an error by the department in relation to the receipt of submissions in terms of compliance with s.418(3) of the Migration Act 1958 would not give rise to a jurisdictional error by the Tribunal, see SZION v The Minister for Immigration (2011) 191 FCR 123 at [66] to [73].
The review provided for, under Part 5, Division 5, of the Migration Act 1958, was a review of the application on the information before the Tribunal. The applicant’s submission document that was attached to the email 9 July 2014 was not information before the Tribunal. Accordingly, the issue of the written submission provided by the applicant to the Department does not give rise to any jurisdictional error by the Tribunal.
For the reasons given, the application fails to identify any ground of jurisdictional error. The application is dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 6 November 2015
1
3