Rampal v Minister for Immigration

[2015] FCCA 3327

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMPAL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3327

Catchwords:
MIGRATION – Application for judicial review of decision of the Migration Review Tribunal – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 474, 476

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163

Applicant: RAJAT RAMPAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 40 of 2015

Judgment of: Judge Brown

Hearing date: 23 November 2015

Date of Last Submission: 23 November 2015

Delivered at: Adelaide

Delivered on: 17 December 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr A Aleksov

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $6,825.00.

3. The Administrative Appeals Tribunal replace the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 40 of 2015

RAJAT RAMPAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in the proceedings, Rajat Rampal, seeks judicial review of a decision of the Migration Review Tribunal, made on 9 January 2015, not to grant him a student (temporary) class TU visa, pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.

2. The applicant is a citizen of India.  He applied for the relevant visa on 23 March 2013.  In his application, he indicated that he proposed to undertake a diploma of human resources, at a private educational facility, based in Adelaide.  The proposed commencement date for the course was 22 April 2013. 

3. In addition, in the application, Mr Rampal indicated that he had previously undertaken firstly an automotive course, and then secondly a diploma in business management course, also in Adelaide, between April 2010 and an unspecified date in 2013. 

4. The grant of the visa in question is subject to a number of conditions, which include the following: 

   ·proof of English language proficiency;

   ·proof of adequate health insurance;

   ·details of prior educational qualifications;

   ·evidence regarding financial support, whilst in Australia;

   ·passport details;

   ·and, of particular relevance in this matter, a statement setting out why the applicant in question wishes to undertake the course of study nominated in the visa application concerned.

5. On 8 May 2013, a delegate of the Minister of Immigration & Citizenship[1] wrote to the applicant to advise him that the Department had received information, which was not supportive of his application.  In particular, Mr Rampal was advised that the Department had been informed that his enrolments, in respect of his earlier courses of study, had been cancelled on the basis of unsatisfactory course progress.

   [1]  as the Department of Immigration & Border Protection was previously known

6. On 5 June 2013, Mr Rampal provided the Delegate with a written explanation regarding his course cancellation.  This explanation was not accepted by the Delegate, who on 14 June 2013, refused the visa application on the basis that Mr Rampal had not substantially complied with the conditions attached to his previous visa, namely satisfactory course progress and attendance.

7. It is this decision, which was subject to review in the Migration Review Tribunal.  The review application was listed for hearing, before the Tribunal, on 4 September 2014.  The applicant attended this hearing without the assistance of any representative.  The Tribunal delivered its decision on 9 January 2015. 

8. On 22 March 2014, the “complied substantially” consideration, relating to the grant of student visas, was repealed by the Migration Amendment (Redundant and Other Provisions) Regulation 2014. In lieu thereof, the applicant had to satisfy the provisions of clause 572.223 of schedule of the Regulations.

9. In its decision, the Tribunal referred to this regulation and described it as “the essence of the student visa scheme’s purpose.”[2]  To satisfy the regulation, the Minister must be satisfied that the applicant for the relevant student visa is a genuine applicant for entry and stay as a student by reference to the following considerations:

   ·the applicant’s circumstances;

   ·the applicant’s immigration circumstances;

   ·any other relevant matter.

   [2] See Case book at page 115 [6]

10. Pursuant to section 360 of the Migration Act, prior to making its decision concerning any review application, the Tribunal is required to invite the applicant concerned to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

11. Mr Rampal received such an invitation, in writing, on 1 August 2014.  In particular, he was requested to provide the following information to the Tribunal: 

    ·A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa;

    ·Documents that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa;

    ·Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia;

    ·An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

12. In the letter, the applicant was further advised that the Tribunal would make an assessment regarding whether the applicant intended genuinely to stay in Australia temporarily, as required by clause 572.223(1)(a) of the Migration Regulations. 

13. On 25 August 2014, the applicant appointed a representative to appear on his behalf before the Tribunal.  However, on 2 September 2014, this representative informed the Tribunal that he had not recently been instructed by Mr Rampal and was therefore withdrawing from the proceedings.  Accordingly, Mr Rampal appeared on his own behalf before the Tribunal at the hearing on 4 September 2014.

14. The Tribunal had access to Mr Rampal’s record on the Provider Registration and International Student Management System.  The record indicated that Mr Rampal’s enrolment in a Diploma of Human Resources Management course had been cancelled on 22 April 2014 because of non-payment of fees.  A further enrolment, in a course of Retail Baking, was cancelled on 3 March 2014.  The record indicated no other enrolments in respect of Mr Rampal.

The Hearing

1. The decision of the Tribunal, although concise, is not particularly easy to follow.  This is because the focus of the decision changed between the application moving between the Delegate and the Tribunal itself away from regulation 572.223 to other more specific regulations, relating to actual course enrolment.

2. In the decision, the Tribunal sets out the evidence provided to it by Mr Rampal.  He indicated that he had initially arrived in Australia to study automotive because his grandfather had a workshop in India.  It was accepted that Mr Rampal had completed a Certificate III in Automotive Specialist in July 2011.

3. Thereafter, Mr Rampal indicated that he had enrolled in a diploma of management, which he had deferred, as a consequence of his mother being unwell in India.  He also agreed that he had been certified, by the relevant education provider, as not having achieved satisfactory course progress. 

4. In response to an apparent question from the Tribunal, Mr Rampal agreed to the proposition that in “four and a half years in Australia his only successfully completed study was a one year certificate III in Automotive Specialist”.

5. The Tribunal decision records as follows:

   “The Tribunal observed that in addition to the Automotive course he had completed he had been enrolled and/or studying a number of other courses including Diploma of Business, Diploma of Management, Diploma of Human Resources Management, and Certificate Ill in Retail Baking. The Tribunal observed that for somebody who claimed to have come to Australia with the clear intention of studying automotive, his enrolment pattern in apparently unrelated courses may indicate he was not a genuine student but was using the student visa regime to maintain residence in Australia. Mr Rampal said he had enrolled in Human Resources not because he wished to study the course, but because he needed to be enrolled .in something to lodge a visa application.

   The Tribunal referred to the hearing invitation and noted he had not provided any of the requested evidence being evidence of current enrolment, evidence of past studies and a statement addressing the issue of whether he was a genuine temporary entrant.

   The Tribunal asked Mr Rampal if he had evidence of current enrolment. He told the Tribunal that he was not currently enrolled.

   The Tribunal again referred to the hearing invitation letter which had asked him to provide a copy of his current certificate of enrolment which it had advised was required for the grant of a student visa.

   The Tribunal told Mr Rampal that without evidence of enrolment, he was not eligible for the grant of a student visa.”[3]

   [3]  See casebook at [116-117]

6. Thereafter, the Tribunal made reference to specific regulations dealing with the grant of visas in a variety of sectors including the schools sector; vocational education and training sector; higher education sector; and non-award sector.  All these require that, at the time of decision, an application must be enrolled in, or be the subject of a current offer enrolment in, a course of study that is a principal course, and is of a type specified under the regulations. 

7. In this context, given that Mr Rampal had provided evidence, at the hearing, that he was not currently enrolled in a registered course, the Tribunal affirmed the decision not to grant him a student (temporary) (class TU) visa. 

The application to the court

1. Mr Rampal has provided his own grounds of review, which are as follows:

   “Member made error in the decision.  As per member I failed to satisfy CL.572.231 by not having current enrolment.  Member failed to put weight on fact that student whose visa get refused do not get enrolment in colleges.  College do not give enrolment to students without a student visa.  Court can check with colleges that they ask visa copy to student when we go for enrolment.  When College donot [sic] give enrolment then how can I give that to Tribunal.  First I need to have visa then I can get enrolment.  Member made wrong decision.”

The applicable legal principles

1. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did. 

2. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

3. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Migration Review Tribunal. Part VIII of the Act deals with judicial review. Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

4. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the MRT by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

5. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions. A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[4] 

   [4]  See Migration Act at section 5

6. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

7. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision. As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act.

8. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[5]

   [5]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

9. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[6]

   [6]  See Craig v South Australia (1995) 184 CLR 163

10. As previously indicated, jurisdictional error is a complex concept.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction. 

Consideration

1. The applicant, in his grounds for review, suggests that the Tribunal has failed to consider some relevant material.  However, he does not specify any particular jurisdictional error.  Nor does he assert that he has been denied fairness or natural justice, during the Tribunal hearing. 

2. It seems to me that the hearing was fairly conducted.  In the invitation letter to him Mr Rampal was advised of the focus the hearing would take and what documentary evidence he was required to produce.  He conceded that his academic progress had been patchy and he was not enrolled in a course of study at the time of hearing.

3. More significantly, in my view, the Tribunal referred to the relevant regulatory provisions, which Mr Rampal was required to satisfy in order to be granted the visa in question.  He was required to satisfy the Tribunal that he was enrolled in, or the subject of a current offer of enrolment in, a registered course at the time of the decision.

4. In my view, the evidence was unequivocal that Mr Rampal did not satisfy these requirements.  He conceded this fact in his oral evidence to the Tribunal.  As such, in my view, the Tribunal lawfully affirmed the decision under review.  On the basis of the evidence available to it and the regulatory framework by which its jurisdiction was conferred, it seems to me to be axiomatic that the Tribunal could not rationally reached any decision other than the one it did.

5. There being no discernible legal error, the application must be dismissed.  The first respondent seeks costs in the sum of $6,825.00.  In this case, I accept that costs should follow the result.

6. Given the abolition of the Migration Review Tribunal, I will make an order that the second respondent be replaced with the Administrative Appeals Tribunal.

7. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  17 December 2015