Randhawa v Minister for Immigration

[2013] FCCA 1207

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANDHAWA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1207

Catchwords:
MIGRATION – Application for judicial review of Migration Review Tribunal decision – whether Tribunal misconstrued meaning of “any other relevant matter” in clause 572.223(2)(a)(ii)(B) of the Migration Regulations – consideration of meaning of the clause – how it applied to facts as found – no jurisdictional error found.

Legislation:  

Migration Regulations 1994 (Cth), sub-cl.572.223(2)(a)(ii)(B)
Educational Services for Overseas Students Act 2000 (Cth)

El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43

Applicant: MANDEEPAK SINGH RANDHAWA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 328 of 2013

Judgment of: Judge Burchardt

Hearing date: 27 June 2013

Date of Last Submission: 27 June 2013

Delivered at: Melbourne

Delivered on: 2 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Gilbert

Solicitors for the Applicant: Glass Lawyers

Counsel for the First Respondent: Mr Reilly

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The application is dismissed. 

3. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 328 of 2013

MANDEEPAK SINGH RANDHAWA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. In this matter, the applicant submits it was not open to the Migration Review Tribunal (“the Tribunal”) to consider, as a relevant matter, the fact that the applicant had not engaged in study either from the date of his application or from the date of refusal of his application (applicant’s written submissions paragraph 11). This proposition involves consideration of the meaning of the phrase “any other relevant matter” in subclause 572.223(2)(a)(ii)(B) of the Migration Regulations 1994 (Cth) (“the Regulations”).

2. The first respondent submitted, putting the matter shortly, that the Tribunal’s reliance upon the applicant’s failure to study was a relevant matter within the meaning of the regulation. 

3. For the reasons that follow, I agree with the first respondent and the application will be dismissed. 

Background (paraphrased in the main from the applicant’s written submissions)

1. The applicant is a citizen of India who came to Australia in February 2009 as the holder of a student visa.  He completed a Certificate III in Commercial Cookery and an Advanced Diploma in Hospitality Management at the KAPS Institute of Management on 2 February 2011. 

2. The applicant intended to undertake a Certificate IV course in Frontline Management and also an Advanced Diploma in Management, but was required to apply for another student visa to cover the duration of the intended courses.  He made his application on 9 February 2011, at which time he was assisted by a migration agent. 

3. The delegate to whom the application was referred asked for further documentation on two occasions.  On the first such occasion, enquiries by Post in Delhi revealed that financial information forwarded by the applicant’s agent was fraudulent.  On the second occasion, further enquiries by Post in Delhi found that although the applicant’s mother did have access to funds, the funds had been procured for the purpose of inflating the financial capacity of the applicant’s mother.  Accordingly, the application was refused by the delegate. 

4. The applicant applied to the Tribunal for review on 19 July 2011, with the assistance of a new advisor.  The applicant filed a submission with accompanying documents on 9 December 2011 and thereafter, as the applicant’s written submissions in my view accurately assert, nothing of note happened until 15 January 2013 when the Tribunal sent the applicant an invitation to appear.  

5. That invitation is at Court Book (“CB”) 111-12.  I accept as counsel for the applicant submits that there is no indication in that letter that the applicant’s failure to study after February 2011 might be relevant, but I also note that counsel for the applicant expressly indicated that this is not a case in which a natural justice point is pressed. 

6. The hearing before the Tribunal was conducted on 19 February 2013, and during this hearing the Tribunal raised for the first time the issue of the applicant’s failure to study in the period after his application. 

The Tribunal’s decision

1. The Tribunal’s decision is at CB183 and following.  The Tribunal set out an Introduction and Relevant Law at CB184-185.  At CB186 in paragraph 11 and under the heading, “Other requirements”, the Tribunal noted:

   “In addition to the above, the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted, and any other relevant matter.”

2. The Tribunal went on at paragraph 12 to refer to the financial capacity requirements of the Regulations.

3. At CB186-193, the Tribunal set out the Claims and Evidence in the matter, and a record of what was said at the Tribunal hearing.  Although the applicant has filed an affidavit of Helen Marie Glass on 16 May 2013 which annexes the transcript of the hearing, no submissions were made about the transcript and accordingly, I have accepted that the Tribunal’s decision accurately records what occurred.  There has certainly been no suggestion to the contrary. 

4. Having recorded the history of the matter at CB186-187, the Tribunal set out at paragraphs 22 and following the record of what actually happened at the hearing.  It is to be noted that the applicant was asked what studies he had proposed to commence in 2011 and when he had started them and relevantly replied (paragraph 23 CB187): 

   “…he did not start them.  He was meant to start those studies on 4 April 2011 but his visa had not been granted.  He kept going to his college.  He told them he did not have his visa and he asked them to defer the start of the course.  They told him if he wanted to continue with his study he could come, but he was worried and nervous because he did not have the visa; that is why he was waiting for the visa.  He was really scared about going to college; it was really hard for him to go and study at that time.  It was a really difficult time for him.  Asked how many times he deferred the start of his studies, the applicant responded that he went 2 or 3 times in the first week and after that he went once a week for 3 or 4 weeks.  After that he stopped going to the college.  He kept calling the Department trying to find out what was going on with his visa.”

5. At paragraph 24, the Tribunal recorded:

   “Asked why he was nervous about studying whilst he was waiting for his visa, the applicant responded that his friends had been telling him that if he did not have a visa he could not start his studies.  The Tribunal noted that his college had told the applicant he could study.  Asked whether he had checked this advice with the Department of Immigration, the applicant responded that he did not ask anything.  Asked why he didn’t, the applicant responded that at that time he was asking them about when they were going to give him his visa.  The Tribunal noted that the applicant had said he came to Australia to study; his education provider had told him he could start his studies without a student visa although his friends were telling him he couldn’t.  The Tribunal further noted that the applicant was regularly getting in touch with the Department of Immigration asking when they were going to grant his visa, but he did not ask whether or not he could start his studies, which was the main reason he was here, before his visa was granted.  The applicant responded that he was really nervous and he was in a totally bad time.  At that time, he did not have his visa but the Department was forcing him to pay all his living expenses here and that is why he was a bit nervous.  He had all the things in his head at that time; that is why he was totally disappointed.  That made it really hard for him to continue with his studies because without mental stability he could not continue with that.  He was mentally not able to concentrate on his studies at that time.  The Tribunal noted that the applicant’s studies ended in February 2011.  Asked what he did after that, the applicant responded that for the last 2 years he has worked 20 hours per week as a taxi driver.  Asked whether he has undertaken any other studies in the last 2 years, the applicant responded that he has not.”

6. It should be noted that at paragraphs 27-34, the Tribunal recorded an exchange about the applicant’s financial capacity issue.  It is clear that the Tribunal was extremely sceptical of the responses the applicant gave. 

7. At paragraphs 35 and following, the Tribunal dealt again with the question that has now arisen.  At paragraphs 36 and 37, the Tribunal said:

   “36.  The Tribunal advised the applicant that the basis for its concern was his study history in Australia.  The applicant had said that he had not undertaken any studies at all in the last 2 years.  However, at the beginning of the hearing, when the Tribunal asked the applicant what purpose he came to Australia for, he said he came here to study and for no other purpose, just to study.  Yet he had not undertaken any studies for the last 2 years even though his education provider had specifically told him that he could study without a Student visa.  He had also not made any enquiries with the Department of Immigration about his ability to study even though his education provider had told him he could.  Then, when he received the Tribunal’s hearing invitation, the applicant obtained a COE to study at Barkly International College.  The applicant responded that this was because the Tribunal had asked him to.  The Tribunal explained that it could not understand, if he came here to study, why the applicant would not undertake any studies for the last 2 years.  The applicant responded that if he continued with his studies and failed all his subjects, then what will he do; he can’t concentrate on his studies at that time.  Asked whether he was suggesting that he could not concentrate on his studies for 2 years, the applicant responded that he was totally reliant on this hearing; when he got the hearing date he was surprised and nervous; he was totally nervous.  The Tribunal advised the applicant that it understood he was nervous but it considered there were serious problems with his application.  The Tribunal advised the applicant it considered, notwithstanding what had been discussed about his financial capacity requirements, that this was the most serious problem.  The applicant claimed he came here to study, and for no other reason.  He was waiting for his second student visa to be approved and was meant to start studying in April 2011.  He went to his education provider and was told it was alright, he could study as, the Tribunal noted, thousands of students do without student visas if their visa applications are refused and they are awaiting the outcome of their Tribunal applications.  Asked whether anyone at the Department had told him he had a visa condition preventing him from studying, the applicant confirmed that they had not.

   37.  The Tribunal explained that it could not understand why the applicant had not studied, but had worked as a taxi driver, over the last 2 years even though he had said he was here to study.”

8. The applicant responded with assertions about the difficulties of studying, the death of his father and uncle and other problems with his younger brother doing drugs.  The Tribunal for reasons set out at paragraph 37 did not accept this response. 

9. The Tribunal’s Findings and Reasons are at CB193-195.  The gravamen of what the Tribunal said for these purposes is at paragraphs 45-49 where the Tribunal said:

   “45.  As can be seen from the claims and evidence above, the Tribunal considered and discussed the requirements of cl.572.223(2)(a)(iii) with the applicant but also indicated that it was concerned whether it could be satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.572.223(2)(a)(ii).  The Tribunal is mindful that the question in this clause requires prospective consideration and it has had regard to the applicant’s stated intention (in his visa application) that he will comply with any conditions subject to which the visa is granted.  However, this clause also requires the decision maker to have regard to any other relevant matter.  The Tribunal is of the view that where an applicant has established a history as an international student in Australia, that history is a relevant matter for its consideration of this clause.

   46.  The Tribunal notes and accepts that the applicant successfully completed a Certificate III in Hospitality (Commercial Cookery) and an Advanced Diploma of Hospitality Management at KAPS Institute of Management during the period February 2009 to February 2011.  However on his evidence, which the Tribunal accepts, he has not since then undertaken any further studies.

   47.  The Tribunal put to the applicant that it considered his failure to undertake any studies since February 2011 to be a relevant matter to its determination of cl.572.223(2)(a)(ii) and discussed it with him.  The applicant provided various reasons for his failure to undertake any studies since February 2011.  Earlier in the hearing he maintained that he was scared to go to college without a student visa and it was really hard for him to go and study at that time; it was a really difficult time for him.  The applicant also claimed that his friends were telling him he could not study without a student visa and he was not mentally stable to continue his studies as he could not concentrate at that time.  Toward the conclusion of the hearing, when the Tribunal again discussed the circumstances that prevented him from studying, the applicant claimed that he was affected by the death of his father, and then the death of his uncle and his brother doing drugs.

   48.  The Tribunal accepts that the applicant’s father died in May 2009, as previously evidenced in December 2011 by his representative submitting a copy of his father’s death certificate.  Earlier during the hearing, the applicant also spontaneously referred to having still being distraught, at the time of his visa application and refusal, by the death of his father.  However, the Tribunal notes that the applicant completed a Certificate III in Hospitality (Commercial Cookery) and an Advanced Diploma in Hospitality Management from February 2009 until February 2011.  As he was able to successfully complete these studies, the Tribunal does not consider that the distress experienced by the applicant at his father’s death in May 2009 would have continued to have a significantly adverse impact upon his ability to study after February 2011.

   49.  After the Tribunal advised the applicant that it could not understand why he had not studied after February 2011 but had continued to work as a taxi driver, even though he had said he was here to study, the applicant claimed, and for the first time, that he was upset by the subsequent death of his uncle and the fact that his younger brother was doing drugs, and he could not concentrate on his studies.  However, the Tribunal does not accept that these events actually occurred.”

10. The Tribunal went on to give Reasons for this last conclusion. 

11. At paragraph 50 and following the Tribunal relevantly found:

    “50.  The Tribunal considered the applicant’s claim that he could not study after February 2011 as he was scared to go to college without a student visa; his friends were telling him he could not do so without one and he was mentally unstable and unable to concentrate.  The Tribunal notes that the applicant was advised by his education provider, where he had completed his earlier studies, KAPS Institute of Management, that he could continue his studies without a student visa.  Notwithstanding this advice, and the fact that the applicant was making regular enquiries of the Department of Immigration about the progress of his visa application, the applicant admitted that he made no attempt to clarify or confirm with the Department his ability to study without a student visa and neither was he advised by anyone at the Department that he had a visa condition preventing him from studying.

    51.  In the circumstances, the Tribunal considers that the applicant could have easily confirmed with the Department the advice he received from his education provider about his ability to study without a student visa and, accordingly, the conflicting advice he received from his friends about his inability to study does not excuse or justify his failure to study for the last 2 years.  The Tribunal notes that the applicant was able to hold down a job as a taxi driver over the last 2 years and, in light of this and absent any suggestion that the applicant suffered from a medical of psychiatric condition during this period that impaired his ability to study, the Tribunal does not consider that he was unable to study for 2 years due to mental instability or inability to concentrate.

    52.  The Tribunal considers the applicant’s lack of study since February 2011 to be a relevant matter, for the purposes of cl.572.223(2)(a)(ii)(B).  The Tribunal is not satisfied, having regard to his circumstances overall, that the applicant is a genuine applicant for entry and stay as a student.”

12. The Tribunal accordingly dismissed the application.

The applicant’s arguments

1. The terms of subclause 572.223, which is a time of decision criterion, are as follows:

   “(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

   (2)(a)(ii)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (A)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (B)    any other relevant matter;”

2. Despite the skill with which the argument was propounded, the position of the applicant can be put shortly. What was said was that while the words “any other relevant matter” are clearly words of broad import on their face, they were required to be addressed in the context of the very prescriptive regime that applies to migration law and student visas in particular. It was submitted that the terms of the explanatory memorandum to the relevant amendment to the Regulations and the policy in the Procedures Advice Manual (“the PAM”) should have led the Tribunal to conclude that the phrase “any other relevant matter” had in fact a restricted meaning. At paragraph 13 of the applicant’s submissions, there is an extract from the explanatory memorandum which purports to give guidance to the meaning of the phrase “any other relevant matter”. It is to be noted, however, that the critical extract reads as follows:

   “Any other relevant matter” could include, but is not limited to:”

   and the memorandum goes on to detail a number of examples.  I note that the examples include “the applicant’s academic record”. 

3. The phrase “academic record” is not defined in the Regulations so far as I am aware but is given some indication in the PAM (Supplementary Court Book (“SCB”) 6). I note however that the PAM which is of course advisory only says in part:

   “Therefore, in considering any student’s academic record, poor academic results are generally not sufficient grounds to refuse under Schedule 2 ‘any other relevant matter’ criterion.  However, if there is a pattern of such results that is a consequence of poor attendance or working to the detriment of their study, this may be a relevant matter for consideration under “any other relevant matters”, whether an offshore or onshore applicant.”

1. What was put essentially by counsel for the applicant was that given the prescriptive regime for migration matters and the guidance available from the explanatory statement and the PAM, it was not open to the Tribunal to have looked to the applicant’s failure to study as a relevant matter within the meaning of the regulation. 

The first respondent’s submissions

1. The first respondent’s submissions, which traversed the various itemised grounds in the application, to which I shall come, can likewise be paraphrased shortly.  It was submitted that there was no limitation to be read into the regulation by reference to the Explanatory Statement, the PAM or the structure of the legislation generally.  It was further submitted that in any event the applicant’s failure to study from 2011 to 2013 but instead to work was clearly a matter capable of being a relevant matter. 

The grounds of the application

Ground 1(a)  The Tribunal erred in having regard to, in isolation, the fact that the applicant had not enrolled in a course and studied in the period following the refusal of his student visa and the date of the Tribunal hearing;

1. This submission is not directly addressed in either the oral or written submissions provided by the applicant, which concentrated on the core issue I have described above.  I note the applicant’s written submission at paragraph 17 assert that the Tribunal was in effect requiring the applicant “to study without a student visa, to show that he was a genuine applicant for the visa, at some indeterminate time on the future (in this case, two years away), is contrary to public policy and good government.”  It should also be noted that criticism is advanced that the applicant was being required to study at a time when he lacked financial capacity to do so.  This submission enters somewhat into the area of the merits of the application.  The Tribunal found that the applicant was working 20 hours a week as a taxi driver as he himself conceded.  Whether or not the applicant was in these circumstances disbarred from studying would be open to question. 

2. It is clear from the language that the Tribunal used that the applicant’s failure to study for two years was a significant matter in these deliberations.  However it is correct to say, as the first respondent’s written submissions do, that the applicant’s explanations were given proper consideration but were simply not believed.  Put shortly the Tribunal’s conclusion that the applicant was not prevented from working for two years by mental ill health because he had been able to work as a taxi driver seems to me one wholly open to the Tribunal to make. 

3. This was not, however, the basis of the Tribunal’s conclusions.  The Tribunal also traversed as a relevant consideration the failure of the applicant, for example, to make any enquiries of the Department of Immigration whether he was in fact, as he claimed, prohibited from studying without a visa. 

4. Put shortly, the Tribunal did not consider the applicant’s failure to study in isolation but as part of his circumstances generally, as it said it did. 

Ground 1(b)  The Tribunal erred in not having regard to the provisions of the Educational Services for Overseas Students Act 2000, which established a prescriptive system for the regulation of education providers and lawful non citizens who wish to study in Australia, in particular those who are the holders of a student visa;

1. Here my conclusion can be stated shortly.  I accept the admittedly brief submission of the first respondent that the Educational Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) was simply not relevant to the issue before the Tribunal which was to decide whether the applicant met the visa criteria or not. 

Ground 1(c)   The Tribunal erred in not having regard to Ministerial Direction 38 which, amongst other things, gave direction to decision makers with regard to breach of condition 8202, but said in its Preamble:

“The Australian Government operates an Overseas Student Programme that enables people who are not Australian citizens or Australian permanent residents to study in Australia.  A person who wants to study under the programme must obtain a student visa before they can commence a course of study in Australia.”

1. Once again, I accept the brief submission of the first respondent that this was simply not a relevant consideration. It is of course the case that a student who wishes to study must obtain a student visa before they do so but what the Tribunal was doing was deciding whether the applicant met the criteria in the Regulations.

Ground 1(d)  In the absence of a definition of the phrase any other relevant matter, the Tribunal erred by not considering policy as set out in the Procedures Advice Manual, in particular, to take into account that policy made no mention of any current study requirement;

1. It is well established that the Tribunal is not required to consider the PAM because it is not a mandatory instrument (El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45] per Gray J).

Ground 1(e)   The Tribunal acted unreasonably in requiring the applicant to have demonstrated his genuineness as a student by studying without a student visa, thereby acting contrary to the spirit of the Overseas Student Programme, outside the Education Services for Overseas Services Act 2000, and outside the student visa provisions set out in the Migration Act and Migration Regulations;

1. Once again, I accept the submission for the first respondent.  The Tribunal did give weight to the failure of the applicant to study despite having studied on his previous student visa.  I accept the submission of the first respondent that the Tribunal did not require the applicant to study without a student visa.  It simply had regard to the fact that he did not study after February 2011 but drove a taxi.  The inter-relationship of these two matters does not seem to me to be in any way unreasonable but rather perfectly understandable.

Other matters

1. Once again, I should indicate that I accept the submission at paragraph 9 of the first respondent’s submissions about the Explanatory Statement and the PAM.  First, I do not think that the phrase “any other relevant matter” is ambiguous or obscure.  Further, in any event, the PAM only gives examples and is clearly not an all inclusive definition.  The Explanation Statement (SCB2) refers to it in terms “any other relevant matter” could include, but it is not limited to:”

2. The relevant extract of the PAM, that is SCB5 states under the heading “Schedule 2 ‘relevant matters’ factors”:

   “Examples that may be considered under the ‘any other relevant matter’ criterion may include any or all of the following, if ‘relevant’.”

3. Clearly these are not all inclusive definitions in any event.

Conclusion

1. Counsel for the applicant very properly conceded that in one sense the precise jurisdictional error alleged was not perhaps refined in his client’s case.  I accept counsel’s submission that, nonetheless, if I was persuaded that the Tribunal’s finding - that the applicant’s failure to study was a relevant matter - was not a proper construction of the regulation then jurisdictional error would have occurred. 

2. Nonetheless, as I hope I have made clear, I think that the applicant’s failure to study, his explanations for it (which the Tribunal did not accept) and the fact that he had driven a taxi instead for the past two years from 2011 to 2013 was clearly capable of being a relevant matter within the meaning of the Regulations which as I have said are not in any way circumscribed.

3. For these reasons, the application will be dismissed with costs. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  2 September 2013