RAMPAL v Minister for Immigration

[2017] FCCA 2024

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMPAL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2024

Catchwords:
MIGRATION – Visa – student visa – failure to satisfy primary criteria for visa – failure to raise matters before the Tribunal – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 368D(5) & 476

Migration Regulations 1994 (Cth), cls.572.222 & 572.235 of Sch.2

Applicant: RAJAT RAMPAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 316 of 2016

Judgment of: Judge Heffernan

Hearing date: 9 August 2017

Date of Last Submission: 9 August 2017

Delivered at: Adelaide

Delivered on: 9 August 2017

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr O Young

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant do forthwith pay the costs of the first respondent in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 316 of 2016

RAJAT RAMPAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 6 September 2016 (of which a written record was provided on 12 October 2016) pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). That decision affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) visa (‘the visa’).

2. The applicant was self-represented before me and made brief oral submissions.  His application identifies a single ground as follows:

   “Member made error in the decision.  As per Member, I fail to satisfy clause 572.231 by not having current enrolment in college.  Member failed to put weight on fact, students whose visa is refused cannot get enrolment in colleges.  Court can check with colleges that they ask for a visa copy from students when go for enrolment.  When college does not give enrolment then how can one provide it to Tribunal.  First I need to have a visa then I can get enrolled.  Member made wrong decision.”

3. On 21 October 2016, the Registrar made procedural orders in this matter giving the applicant leave to file any amended application by 23 December 2016.  The applicant was also given leave to file and serve any further material, including transcript of the Tribunal proceedings, that he sought to rely on by that date.  He was also ordered to file an outline of submissions 14 days prior to the hearing of this matter.  The applicant has not filed an amended application or any other material on which he sought to rely, and no outline of submissions was filed. 

4. The background of this matter is not really the subject of any dispute. I will summarise it, relying to some extent on the summary provided in the written submissions of the first respondent. The applicant initially made his application for a visa on 23 March 2013. It was refused by a delegate of the Minister on 14 June 2013. The basis of that refusal was that the applicant could not satisfy the requirements of cl.572.235 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). That was because the delegate was not satisfied that the applicant had substantially complied with the conditions of his last held substantive visa.

5. With respect to his last held substantive visa, the applicant had at that time been certified by his education provider as not achieving satisfactory course progress. That meant that he did not comply with condition 8202(3) of that visa. The applicant was dissatisfied with that decision and made an application for review to the Tribunal on 5 July 2013. He attended a hearing on 4 September 2014, and on 9 January 2015 the Tribunal affirmed the decision under review on the basis that he was not enrolled in a registered course and for that reason could not meet the Schedule 2 requirements for the visa.

6. The applicant was dissatisfied with that decision and made an application to this Court for judicial review. That application was heard on 17 December 2015 when Judge Brown dismissed it. The applicant then appealed to the Federal Court. The matter was resolved by consent orders being made on the basis that the Tribunal had failed to comply with s.359A of the Act as it did not provide the applicant with an opportunity to comment on, or respond to, information contained in the Provider Register International Students Management System, known as PRISMS, and that this had been a reason, or part of the reason, for affirming the decision under review.

7. Subsequently, on 8 August 2016, the Administrative Appeals Tribunal invited the applicant to attend a hearing for a merits review on 6 September 2016. On that date, the applicant appeared before the Tribunal to give evidence and present argument. The Tribunal considered the submissions of the applicant on that day and gave an oral decision affirming the decision under review. On 12 October 2016, the Tribunal provided a written statement of that decision in response to a request from the Department of Immigration and Border Protection pursuant to s.368D(5) of the Act.

8. It is that decision, made on 6 December 2016 and published on 12 October 2016, that the applicant now seeks to review.  The decision record published by the Tribunal is extremely brief and sets out succinctly why it affirmed the decision which had been the subject of review.  The Tribunal set out the procedural history and noted that the applicant, whilst attending on the day of the hearing, had not responded to the invitation to attend and provide information to the Tribunal.  The Tribunal member asked him on what basis he wished to review the previous decision and what evidence he intended to present.  It recorded that he simply responded that he had come to the Tribunal just to hear what it had to say.[1]

   [1]     Court Book (‘CB’) p 177.

9. For that reason, the Tribunal noted that the applicant did not appear to be presenting any grounds or basis upon which he sought to review the earlier decision. It further noted that he informed the Tribunal that he had determined to return home, and that he confirmed that he was not enrolled in any courses and that he did not have an offer of enrolment in any courses. The Tribunal concluded that because he was not enrolled in any courses or have any offer of enrolment for any courses, he could not satisfy cl.72.222 of the Regulations. For that reason he was not eligible for the grant of a student visa and it had no other alternative but to affirm the decision under review.

10. In his oral submissions before me, the applicant did not dispute that at the time of the Tribunal hearing he was not enrolled in a relevant course or that he did not have an offer of a relevant course.  As he said in his oral submissions, it is his position that the Tribunal did not take into account that he had paid fees to a particular college which had then refused to enrol him in a course, and proceeded to tell the Department that he was not enrolled in a course and that he did not have an offer of enrolment in a course. 

11. In essence, what the applicant was submitting to the Court was that he had been the victim of either dishonest or disreputable conduct on the part of the education provider at a time prior to the Tribunal hearing.  The applicant did not submit that he had placed any evidence to this effect before the Tribunal on 6 September 2016. 

12. The submission made by the respondent was that the ground as pleaded does not identify any jurisdictional error, and for that reason alone this application could be dismissed.  In oral submissions, Mr Young made the observation that the only record of what the Tribunal had before it is that which is recorded in the decision record of its published reasons.

13. There is no evidence that the applicant raised the particular problem identified by him during submissions before me at any stage before the Tribunal. In any event he did not have, as he has acknowledged, enrolment or an offer of enrolment, and could not have satisfied cl.572.222 of the Regulations. I have considered the decision record and the submissions of both the applicant and the respondent. The ground of application that has been filed by the applicant, to the effect that the Tribunal member failed to put weight on the fact that students whose visas are refused cannot get enrolment in colleges, misconstrues the significance of the criteria for the visa.

14. It also ignores the fact that the question of what weight is to be put on any particular piece of evidence is, generally speaking, a matter for the Tribunal and not a matter for a court on judicial review.  Even if the evidence had been before the Tribunal that students whose visas have been refused cannot get enrolment in colleges, the fact still remains that at the time of the Tribunal hearing the applicant was not enrolled and did not have an offer of enrolment, and for that reason could not satisfy the relevant clause as he was required to. 

15. It may be, as the applicant has said in submissions, that he was the unfortunate victim of sharp or unethical practice on the part of the education provider.  There is no evidence before me to suggest that he was.  That of itself does not establish that on the basis of the evidence that the Tribunal had before it, that it has made a jurisdictional error.  I have considered the reasoning of the Tribunal, and I am satisfied that it properly considered whether the applicant met the relevant criteria for the grant of the visa and that it properly identified that a relevant question for it was whether he was enrolled in any courses or had an offer of enrolment in any courses and was capable of satisfying cl.572.222 of the Regulations.

16. The Tribunal would have been aware that cl.572.222 is a primary criteria that must be satisfied at the time of the decision. There was no evidence before the Tribunal of any current enrolment or offer of enrolment, and for that reason, the Tribunal’s findings were not simply open to it. Rather, it is difficult to see how the Tribunal could have reached any other correct decision based on the need to satisfy primary criteria for obtaining the visa.

17. Further, as submitted by the first respondent, it is not apparent to me that the applicant made any complaint to the Tribunal to the effect that students whose visas have been refused cannot obtain enrolment in colleges at the time of the Tribunal hearing.  I am not satisfied that the applicant has demonstrated any jurisdictional error in the approach taken by the Tribunal, and for that reason I dismiss the application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 15 September 2017