Roka v Minister for Immigration

[2015] FCCA 427

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROKA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 427

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Kim v Witton (1995) 59 FCR 258
Mahfooz v Minister for Immigration & Anor [2013] FCCA 1825
Minister for Immigration v Modi (2001) 116 FCR 496
Shrestha v Minister for Immigration [2001] FCA 1578

Applicant: BISHAL ROKA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 481 of 2014

Judgment of: Judge Driver

Hearing dates: 10 November 2014, 26 February 2015

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Solicitors for the Applicant: Mr M Newman of Newman & Associates

Solicitors for the Respondents: Ms A Carr of DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. For the purposes of order 4 made on 10 November 2014, costs are quantified in the amount of $671.

3. In addition to order 2, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 481 of 2014

BISHAL ROKA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 5 February 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Roka, a temporary student visa.  Background facts relating to this matter are dealt with in the submissions of the parties. 

2. Mr Roka is a male citizen of Nepal born on 16 August 1980.[1]  He first arrived in Australia on 12 February 2009 as the holder of a student (Class TU) Subclass 572 visa, which ceased on 15 March 2011.  On the cessation of that visa Mr Roka was granted a Bridging A visa and on 24 June 2011 Mr Roka was granted a student (Class TU) Subclass 572 visa, which was due to cease on 4 August 2012.[2]

   [1] Court Book (CB) 1.

   [2] That visa was subject to conditions 8105, 8202, 8501, 8516, 8517, 8532 and 8533.

3. Mr Roka applied for another student (Class TU) visa on 3 August 2012 (the subject of this judicial review).[3]  The application was refused by the Minister’s delegate on 7 September 2012.[4]

   [3] CB 1-8.

   [4] CB 22-25.

4. Mr Roka applied to the Tribunal for review of the delegate's decision on 21 September 2012.[5]

   [5] CB 27-37.

5. Mr Roka gave oral evidence before the Tribunal on 31 January 2014.[6] 

   [6] CB 88-90.

The decision of the Tribunal

1. As Mr Roka gave evidence of enrolment in a Bachelor of Business, he was assessed against subclass 573.[7]  The issue before the Tribunal was whether Mr Roka had substantially complied with condition 8516 of his student visa granted on 24 June 2011.[8]

   [7] See [11] at CB 99.

   [8] See [10] at CB 99.

2. The Tribunal found Mr Roka's evidence regarding the gap in his studies to be vague and unpersuasive,[9] and his evidence regarding his health to be unsatisfactory.[10]  The Tribunal found that there was no persuasive evidence before it to indicate that Mr Roka was suffering from either a physical or psychological ailment to explain the gap in his studies between 24 November 2011 and 4 August 2012.  The Tribunal noted that during this time, Mr Roka had been working.  Consequently, the Tribunal found that, if Mr Roka was well enough to work, then it was reasonable to assume that during the relevant period Mr Roka was capable of continuing his studies.[11]

   [9] See [17] at CB 100.

   [10] See [19] at CB 100.

   [11] See [19] at CB 100.

3. Ultimately, the Tribunal found that Mr Roka was not enrolled in, nor was the subject of an offer of enrolment in a course of study between 24 November 2011 and 4 August 2012.  Consequently, the Tribunal found that Mr Roka and had not substantially complied with condition 8516 of his last substantive visa and, therefore, did not meet the requirements of clause 573.235.[12]

   [12] See [21] at CB 100-102.

The present application

1. I have before me as evidence the court book filed on 4 April 2014, as well as the affidavit of Adele Juliet Carr made on 21 January 2015.  Annexed to that affidavit is a transcript of the hearing before the Tribunal. 

2. This matter first came before me for directions on 1 April 2014.  At that time, I made orders by consent listing the matter for a show cause hearing on 10 November 2014.  The hearing commenced at that time, but Mr Roka’s representative sought and obtained an adjournment of the hearing on the basis of further information being available.  I granted the adjournment subject to an order in the Minister’s favour for costs thrown away. 

3. I granted Mr Roka leave to file and serve an amended application and any further affidavit evidence in support by 12 December 2014.  An affidavit by Mr Roka was filed in Court on that day, but was not read at today’s resumed hearing.  No amended application was filed. 

4. The ground in the application before the Court is:

   1.    The applicant applied for a student visa.  Upon refusal by the Minister, the applicant sought a review by the Tribunal, which though citing Kim v Whitton [sic] in which a number of circumstances were held to be relevant including on of 'whether or not the applicant deliberately flouted the condition', the Tribunal found that a gap in the study history of the applicant was fatal to the applicant's claim but made no finding that the study gap could not be explained other than by a deliberate flouting by the student.  Accordingly, the failure by the Tribunal to so find an important integer caused the Tribunal to err in law and in its jurisdiction and its decision should be set aside.

Consideration

1. Although a number of issues were traversed in oral submissions this morning, bearing in mind that I had granted Mr Roka leave to file and serve an amended application and none was filed, I have confined my consideration to the ground in the application filed on 3 March 2014.  The ground asserts relevantly error by the Tribunal in dealing with the considerations identified by the Federal Court as bearing upon an assessment of the kind made by the Tribunal in Kim v Witton.[13]

   [13] (1995) 59 FCR 258 at 271

2. The Tribunal in its decision at [13][14] itself referred to that decision and the considerations identified in it.  The Tribunal went on at [14] to say that there is no rigid test and that those considerations should not be regarded as exhaustive or elevated to the status of relevant considerations in every case.  The Tribunal referred to the Federal Court decisions in Shrestha v Minister for Immigration[15] and the Minister for Immigration v Modi.[16]

   [14] CB 99.

   [15] [2001] FCA 1578.

   [16] (2001) 116 FCR 496.

3. The Minister’s representative took me this morning to the decision in Modi, in particular at [13], [19] and [21]. I am satisfied that the Tribunal accurately reflected the substance of that decision. In addition, the Minister’s representative took me to the decision of this Court in Mahfooz v Minister for Immigration & Anor,[17] in particular at [20], which re-iterates the Federal Court authority.

   [17] [2013] FCCA 1825.

4. The issue before the Tribunal was whether Mr Roka had substantially complied with the conditions on the previous visa held.  There was a gap of his studies of a substantial period of about 10 months.  He was called upon to explain that gap before the delegate, and the delegate was not satisfied that he had done so.  He was, therefore, clearly on notice of the issue likely to be determinative of the review before the Tribunal.  At the Tribunal hearing which Mr Roka attended without the assistance of his representative, he raised an issue of his mental health.  Mr Roka had not asserted any mental health issue in his written visa application, and the issue was only lightly touched upon before the delegate.

5. Mr Roka was somewhat more expansive before the Tribunal, but conceded that his state of mind was more one of unhappiness than any clinical issue, and that he had not sought medical intervention.  The Tribunal considered the issue of Mr Roka’s state of health at [19] and [20] of its reasons[18].  The Tribunal was not satisfied that Mr Roka suffered from any physical or psychological ailment that explained the gap in his studies.  The Tribunal also observed that Mr Roka was apparently well enough to work.

   [18] CB 100.

6. In my opinion, the Tribunal was not required to make a positive finding that Mr Roka had deliberately flouted the condition on his visa in order to affirm the decision of the delegate.  In circumstances where an applicant is indifferent to the condition on the visa or is simply careless in relation to it, it may also be open to the Tribunal, depending on the circumstances, to affirm an adverse decision of the Minister’s delegate. 

7. The Tribunal clearly found that Mr Roka was able to continue his studies and that he had not satisfactorily explained the gap in his studies.  It was open to the Tribunal on the material before it to conclude that Mr Roka had not substantially complied with the condition on his visa and, thus, affirm the decision under review. 

8. I am not persuaded that Mr Roka has raised an arguable case of jurisdictional error by the Tribunal. I will, accordingly, order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

9. The consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister sought costs fixed in the amount of $5,300 noting that the hearing had previously been adjourned, and the Minister was put to additional expense in filing an affidavit and transcript.  I take into account that I ordered Mr Roka to pay the Minister’s costs thrown away by reason of the adjournment on 10 November 2014.  The Minister has quantified those costs in the sum of $671.  Mr Roka did not wish to be heard on costs.

10. I will order that for the purposes of order 4 made on 10 November 2014, costs are quantified in the amount of $671.

11. In addition to order 2, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  2 March 2015