RANA v Minister for Immigration

[2014] FCCA 1226

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANA & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1226

Catchwords:
MIGRATION – Alleged jurisdictional error by MRT – whether applicant a genuine applicant for entry and stay as a student – applicant not studying 2010-2011 – whether failure to study explained – whether Tribunal’s finding open – no jurisdictional error shown.

Legislation:  

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cls.572.223, 572.223(2)(a)(ii)

First Applicant: RAJEEV RANA

Second Applicant: SUNITA DEVI

Third Applicant: DIVYANSHI RANA

Fourth Applicant: AYASHA RANA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1375 of 2013

Judgment of: Judge Burchardt

Hearing date: 1 April 2014

Date of Last Submission: 1 April 2014

Delivered at: Melbourne

Delivered on: 18 June 2014

REPRESENTATION

The First Applicant:  In person

Counsel for the First Respondent:  Mr Brown

Solicitors for the Respondents:   Australian Government Solicitor

ORDERS

1. The Application filed 28 August 2013 be dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed at $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1375 of 2013

RAJEEV RANA

First Applicant

SUNITA DEVI
Second Applicant

DIVYANSHI RANA
Third Applicant

AYASHA RANA
Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant seeks judicial review of a decision of the Migration Review Tribunal dated 6 August 2013 by which the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The Tribunal found that the first applicant (“the applicant”) (and the other applicants as dependent family members) should not be granted a visa because the Tribunal considered that the applicant was not a genuine applicant for entry and stay as a student within the meaning of cl.572.223 of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. The applicant said he had had a gap in his studies from 2010 to 2011 as a result of complications in his wife’s pregnancy with their second child.  The Tribunal did not accept that he had established this.  The Tribunal further found that the applicant was not a genuine student for other reasons.

4. For the reasons that follow, I do not think that the Tribunal fell into jurisdictional error and it follows that the application will be dismissed.

The Application

1. The Application sets out four paragraphs as grounds of application.  The first is to the effect that the applicant was not well prepared to give right answers to the member at the time of the Tribunal hearing.  The second is that the applicant is not happy with the Tribunal decision.  The third is that to the effect that the Tribunal member was not satisfied by the medical evidence the applicant provided and he would now seek to do so.  The fourth is to the effect that he was genuine in his desire to study.

2. The Affidavit filed 28 August 2014 in support of the application relevantly deposes:-

   As I am not satisfied with the Tribunal decision. At the time of Tribunal hearing I was not well prepare to give right answers to member, now I am try to give all evidence. 

3. Despite Orders made by Registrar Caporale on 6 November 2013, the applicant has not taken the opportunity to file any amended application, supplementary court book or written submissions.  He has filed a further Affidavit, to which I will return.

4. The first respondent filed Contentions of Fact and Law on 14 January 2014.  These set out the procedural history of the matter, including the undeniable assertion that the applicant held a number of student visas between October 2007 and 21 August 2010.  The Application he lodged on 22 August 2010 is the one that has ultimately given rise to this proceeding. 

5. The first respondent’s written submissions traversed the terms of the legislation and the delegate and Tribunal’s decision.  They traversed the applicant’s grounds of application and assert that the application does not identify a jurisdictional error and in substance constitutes impermissible merits review. 

6. The following written submissions are set out at paragraphs 29 to 32:

   The delegate’s decision records the specific nature of the medical evidence required, which was not subsequently submitted (CB pp 89/ 90). 

   At the Tribunal hearing the Tribunal noted that there was no medical evidence indicating the applicant’s wife needed constant monitoring during her pregnancy.  When asked why he could not return to study after his second child was born, the first applicant said that he was going to school but had no evidence of his attendance.  He was disturbed in his mind at that time.

   While the first applicant claims that he was not prepared at the Tribunal hearing to give the evidence which the member sought, the applicant had almost two years to obtain and submit medical evidence in support of his claims, but did not do so. 

   The refusal of the migration agent’s request in the course of the hearing to delay making a decision for 3 months was not unreasonable.  The applicant had been present in Australia on a student visa for almost six years, and had accepted that his history as an international student since April 2010 had not been very good.  Over 18 months had passed since the application for review to the Tribunal; the applicants had had an extended opportunity to submit evidence to the Tribunal.  Delaying the Tribunal decision for three months to enable the applicant to attend further classes would not have changed the first applicant’s history as an international student in a material way.

The Applicant’s Affidavit filed 12 March 2014

1. The applicant’s Affidavit filed 12 March 2014 annexes various other documents.  The first is a statement made by the applicant.  It essentially repeats the claims made as to his wife’s difficult pregnancy and adds some other matters relating to his grandmother and attendant family responsibilities.  He otherwise repeats complaints about the college he had previously attended and refers to the materials that he had forwarded to the Tribunal about his wife’s medical history.

2. He appends a medical certificate which relevantly reads:

   RAJEEV KUMAR RANA is required to assist his wife during pregnancy as she carries a condition that makes her a high risk pregnancy.  His wife is called Sunita Devi.

   The certificate is dated 18 November 2013.  The other materials annexed are not presently, in my view, of relevance. 

3. At the hearing before the Court, the applicant asserted that he had given information to explain his gap in study between 2010 to 2011 and asserted that he was not told by his agent that a doctor’s report would be required before the Tribunal.  He also asserted that he was indeed studying during the period of the gap. Otherwise, his oral submissions, in my view, merely re-traversed the materials he had already filed.

4. Counsel for the first respondent in oral submissions pointed out that it was clear from the Tribunal’s decision that the applicant, his wife and migration agent had all been present at the hearing and otherwise relied upon his written submissions.

The Tribunal’s Decision

1. It should be noted that the only medical evidence apparent to me that touches directly upon the health of the applicant’s wife in her pregnancy is at CB 112 where the Royal Women’s Hospital by letter of 2 June 2010 makes some observations about his wife’s health.  None of that material would necessarily establish the contention that the wife required the sort of help that the applicant said he was required to give.  It is of course true that the applicant and his wife both filed statutory declarations supporting the history for which he contended.

2. The Tribunal set out the procedural history of the matter and the relevant law, including the relevant regulations. 

3. At CB 163-166 the Tribunal recorded the claims and evidence in the matter.

4. At CB 164, paragraph 121, the Tribunal noted that the applicant had told the Tribunal that his visa was refused because of a gap in his studies between 15 April 2010 and 4 April 2011 and that the applicant explained this was because of his wife’s difficulties with pregnancy and that he was taking care of her. The applicant acknowledged that he had not formally applied for deferment of studies, although he had been attending some classes. At paragraphs 26 and 27 (CB 164) the Tribunal noted:-

   The applicant said that his history as an international student up until April 2010 and agreed that his history since that time was not very good but it was because he had chosen to attend the wrong college. 

   The Tribunal referred to the medical evidence submitted and noted that there was nothing in his evidence that indicated that his wife needed constant monitoring.  The Tribunal asked the applicant how his wife’s pregnancy prevented him from being involved in a course.  The applicant said that he had had to take his wife to the doctor 2 or 3 days in month.  At the time the applicant and his wife were living with his sister.  His sister does not work or study.  The applicant’s sister did not have a drivers licence.  The Tribunal did not understand how between himself and his sister he could monitor his wife and fulfil the requirement that he be enrolled in a registered course.  The Tribunal asked the applicant why he could not return to study after his child was born.  The applicant said he was going to school but had no evidence of his attendance.  The applicant said he was disturbed in his mind.  The applicant confirmed again that he had not applied for a deferment from his studies.

5. At paragraph 30 (CB 165) the Tribunal noted:

   The Tribunal acknowledged the medical concerns for the applicant’s wife, but in 6 years he had only completed 2 courses.

6. The gravamen of the Tribunal’s decision is set out at paragraphs 42- 47 (CB 167-168) which are as follows:

   In the decision record, a copy of which was provided with the application for review, the delegate identified a period of 11 months during which the applicant had not been enrolled in a registered course, notably between 15 April 2010 and 24 April 2011.  The applicant does not dispute this and his evidence to the Tribunal is consistent with that provided to the delegate that this gap was due to his wife’s difficult pregnancy.  The applicant has provided documentary evidence of his wife’s health during her pregnancy and this is not disputed by the Tribunal.

   The answer to the question as to whether the applicant’s wife’s medical condition was such that he could not maintain his enrolment in a registered course for a period of 11 months is less apparent.  The applicant’s evidence is that prior to his wife’s confinement he was told by a doctor that his wife needed constant monitoring.  The medical evidence submitted to the Tribunal does not support this claim.  Nor is there evidence to support the claim that the applicant needed to provide care for his wife and children after his wife’s confinement.  In this regard the Tribunal refers to the decision record which notes the applicant’s lack of response to the request by the delegate to provide medical evidence to confirm why he was required to care for his wife before and after she had given birth to their second child.  As stated above there is no such corroborative evidence before the Tribunal.

   Importantly, the applicant’s further evidence is that before and after the birth of his second child he and his wife lived with his sister.  The applicant’s evidence is that his sister, who is neither employed nor studying, had monitored his wife from time-to-time.  The Tribunal reasonably asked why the applicant could, with his sister, share the care responsibilities of his wife in such a way as to enable him to maintain his studies.  The applicant’s response was that his sister did not have her driver’s licence at the time and his overall response to this question does not satisfy the Tribunal that a shared arrangement between himself and his sister to care for his wife was unreasonable or had been seriously considered. 

   The Tribunal considers that even if the applicant’s claims about his wife’s medical condition during her pregnancy were correct he has provided no evidence that he sought a deferral from his studies for this reason nor did he discuss his circumstances with the Department so that he could care for his wife and not be in breach of a fundamental condition of his student visa.  The Tribunal considers that either of these two options was open to the applicant so that he maintained his enrolment and therefore the integrity of his history as an international student. 

   The Tribunal considers that it is a foremost condition and expectation for the holder of a student visa to maintain enrolment in a registered course at all times.  The Tribunal also considers that from time to time this may not be possible because of individual circumstances.  In this matter the applicant has not done so and even having regard to his wife’s health issues the Tribunal considers his non-enrolment for the period identified to be inconsistent with a person who claims to be a genuine applicant for entry and stay as a student.

   On the basis of the above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(a)(ii).

Consideration

1. In my view, and regrettably for the applicant, it is clear that it was open to the Tribunal to find as it did that the medical evidence provided by the applicant did not go so far as to establish independently of his own evidence and that of his wife, that he had been required to care for her in such a fashion as to make it impossible for him to study.

2. Further, it was open to the Tribunal to find in the circumstances set out in the passage above that it would have been open to the applicant to seek to defer his studies or otherwise approach the Department of Immigration and Citizenship (as it then was), neither of which he had done.

3. In the face of the evidence as a whole, the decision of the Tribunal that the applicant had not been, during the period 2010 to 2011, a person continuously engaged in study, without an appropriate excuse, was clearly open to it. 

4. The Tribunal was clearly seized of the question before it, namely whether the applicant complied at all material times with cl.572.223 of the Regulations and did not, in my view, misconstrue its task or otherwise fall into error in this regard.

Conclusion

1. For these reasons it follows that the application cannot succeed and I will order that it be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  18 June 2014