Sandu v Minister for Immigration
[2015] FCCA 2243
•19 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2243 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – application for a Temporary (Class TU) visa – no grounds of judicial review stated – cl.572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) – compulsory criteria – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(a) Migration Act 1958 (Cth), ss.65, 499 Migration Regulations 1994 (Cth), Sch 2: cl.572.223, Sch 8: condition 8156 |
| MZKAJ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1066 MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 |
| Applicant: | PRITPAL SINGH SANDU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 187 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 7 July 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 19 August 2015 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the First Respondent: | Ms Latif |
THE COURT ORDERS THAT:
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Application filed on 3 February 2015 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,416 and the costs earlier ordered (by Order of 13 May 2015) fixed in the sum of $1,367.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 187 of 2015
| PRITPAL SINGH SANDU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant filed an Application for judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) made on 14 January 2015. In that Application filed by him on 3 February 2015, the Applicant sought an order that the decision of the Tribunal be quashed. The grounds of application, as set out by him, went to merits review of the decision of the Tribunal. No grounds of judicial review were stated. In that regard, the substantive application of the Applicant was meaningless for the purposes of judicial review of the Tribunal decision by this Court. The Applicant would no doubt have been ordered to file an amended application when the matter proceeded before Registrar Allaway on 13 May 2015, in light of the inadequacies in his Appliction. Prior to that time, and on 16 February 2015, the First Respondent had filed a Response opposing the application for an order to show cause on the grounds that the Tribunal decision was not affected by jurisdictional error.
On 13 May 2015, the Applicant’s judicial review application came before Registrar Allaway. On that day there was no appearance by the Applicant. The Court ordered that the Application be dismissed and that the Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $1,367.
On 28 May 2015, the Applicant filed an Application in a Case. He sought no orders in that application, but it is clear from the contents of an Affidavit relied upon by him, sworn on the 27 May 2015, that the Application sought to set aside the Orders made by Registrar Allaway pursuant to sub-r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). The First Respondent opposed the proceeding being reinstated.
The First Respondent relied upon the Response dated 16 February 2015 and an Affidavit of Mr Vincenzo Murano affirmed on 5 June 2015. In addition, the First Respondent filed Written Submissions as to reinstatement of the proceedings, dated 9 June 2015.
In considering this matter I note what was said by Justice Ryan in MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 at paragraph 7:-
“In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZAKJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but, also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement (emphasis added).”
In essence, the First Respondent opposed reinstatement of the Applicant’s Application because he argued there was before the Court no reasonable excuse for the Applicant’s failure to appear on 13 May 2015, and because the Applicant’s substantive proceedings had no reasonably arguable prospect of success. The First Respondent conceded that reinstatement of the Applicant’s Application would occasion no prejudice to the First Respondent that could not be remedied by an appropriate order for costs.
The Court finds there is no reasonable excuse for the Applicant’s absence from the hearing before Registrar Allaway for these reasons:-
a)on 3 February 2015, the Applicant was provided with the first return date on the Application which he filed at the Court’s registry. On 16 February 2015, Mr Murano, acting on instructions from the First Respondent, wrote to the Applicant. That letter stated, amongst other things, that the Application of the Applicant was listed for a first court date before the Federal Circuit Court on 13 May 2015 at 10am. Under the heading “Requirement to appear at Court” Mr Murano also indicated to the Applicant that it was important he appear in court each time that his matter was listed for hearing. The correspondence said further:-
“If you do not appear in Court at the date and time required, your application may be dismissed and you may be ordered to pay our client’s costs of the proceeding.”[1]
b)Mr Murano’s correspondence also set out the Court’s telephone number for the Applicant, advised him of the noticeboard on the ground level of the Court and advised of the Court’s website details and of the Commonwealth Courts Portal details. At the conclusion of that correspondence the letter said:-
“Please, contact Vince Murano if you have any queries.”[2]
Mr Murano deposes in his Affidavit affirmed on 5 June 2015 that other than the Applicant filing his Application on 3 February 2015 and his Application in a Case on 28 May 2015, the Applicant has made no contact with Clayton Utz. The Applicant does not take issue with this.
c)the Applicant was given written notice of the time, date and place of the first hearing date in clear terms on at least two occasions. His oral submissions on 10 June 2015 that he wrongly believed the matter was listed for 15 May 2015, which he altered to the 13 June 2015, and then to 15 June 2015, were not plausible, nor reasonable explanations in light of the Applicant’s knowledge of the time and place of hearing of his application by its provision to him in written form. There was no basis for his mistaken belief as to the date of hearing. His lack of due diligence in prosecuting his application, and failure to seek out confirmation of the date of hearing from the Solicitor for the First Respondent, in circumstances where he claimed to have lost his file on return from a month long trip to India, also weighed against him and were not evidence of reasonableness in his conduct nor did they go favourably as to the Applicant’s credit.
d)the Applicant claimed he was depressed and suggested this was a reasonable excuse for his failure to attend the earlier hearing. No medical evidence was provided by the Applicant as to his claimed depression by way of any attachment to his own Affidavit, nor by way of an independent affidavit sworn by a doctor. No medical evidence was produced by him at the hearing of his Application in a Case on 10 June 2015 in support of his oral submissions. The Court in those circumstances does not accept this claim as to medical inability as the basis for his failure to attend the earlier hearing date on 13 May 2015.
[1] Letter from Clayton Utz to the Applicant dated 16 February 2015.
[2] Ibid.
Lack of reasonable prospect of success
The Application before the Tribunal was to review a decision made by a Delegate of the Minister for Immigration & Border Protection (‘the Delegate’) to refuse to grant the Applicant a Student Temporary (Class TU) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant has been in Australia since 18 February 2008, holding student visas. Condition 8516 of the Migration Regulations 1994 (Cth) (‘the Regulations’) applied to these visas and, in the Applicant’s case, obliged him to take a higher education sector course. Notwithstanding that, his studies did not go beyond a number of short courses and trade certificates.
The Applicant applied to the Department of Immigration and Citizenship (as it then was) (‘the Department’) for a further student (temporary) visa (‘the visa’) on 8 July 2012. The Delegate refused to grant the visa on 3 October 2012. The Delegate refused to grant the visa because the Applicant did not satisfy the requirements of cl.572.223 of sch.2 to the Regulations. The Delegate was not satisfied that the Applicant genuinely intended to stay temporarily in Australia as a student, as evidenced by his migration history; his non-compliance with previous student visa conditions; his failure to study for certain periods of time; and his completion of minimal academic qualifications.
On 10 July 2012, shortly after the Applicant lodged his visa application, the Department wrote to him and sought further material, including a “statement of purpose”. The Department explained the statement should set out the Applicant’s reasons for undertaking the course of study specified in his visa application and provided guidance as to the contents of the statement. The Department also alerted the Applicant to adverse information concerning his application and invited him to comment.
The information was identified in the following terms:-
“Information available to the Department indicates that you did not attend any course of study from November 2008 to July 2010, and then again from April 2011 to December 2011. This is a cumulative study gap of 28 months, during which time you held visas with full study rights and departed from Australia for a period of only two months. Further, it appears that although you have been twice granted TU 573 visas you have never commenced a course in the Higher Education Sector. In fact, it appears that since your arrival in Australia on 18 February 2008, your studies have never progressed beyond the vocational educational level.”[3]
[3] Email from the Department of Immigration and Citizenship to the Applicant requesting further information dated 10 July 2012.
The Applicant did not provided a “statement of purpose” and did not provide written comment on this adverse information. He did, however, before the Tribunal, seek to address concerns arising from gaps in his studies in Australia.
The Applicant appeared before the Tribunal on 19 June 2014 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent. Just prior to the hearing, the Tribunal had been provided with some evidence of studies undertaken during the Applicant’s time in Australia. That evidence was a confirmation of enrolment for a Diploma of marketing, a course scheduled to commence on 26 May 2014. This document was created shortly after the Applicant was forwarded a hearing invitation letter by the Tribunal.
Legislation
The relevant subclass for the Tribunal to consider was subclass 572 of sch.2 to the Regulations. The Tribunal correctly identified the issue in the Applicant’s case was whether he met the time of decision criterion in cl.572.223 of sch.2 to the Regulations. Such clause relevantly states:-
“(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.”
In considering whether the Applicant satisfied the criterion, the Tribunal noted that it must have regard to Direction Number 53 “Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications” made under s.499 of the Act. The Tribunal noted the direction required it to have regard to a number of specified factors in relation to:-
a)the Applicant’s circumstances in his own country, potential circumstances in Australia and the value of the course to the Applicant’s future;
b)the Applicant’s immigration history, including previous applications for an Australian visa or for visas to other country and previous travel to Australia or other countries;
c)if the Applicant is a minor, the intentions of a parent, legal guardian or spouse of the Applicant; and
d)any other relevant information provided by the Applicant or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the Applicant.
The Tribunal noted that the directions indicated that the factors specified should not be used as a checklist, but, rather, are intended to guide decision-makers to weigh up the Applicant’s circumstances as a whole in reaching a finding about whether the Applicant satisfies the genuine temporary entrant criterion.
The Tribunal considered the Applicant’s claims and evidence and made findings. The Tribunal considered the Applicant’s evidence to be deliberately confusing, vague and, at times, evasive and inconsistent. The Tribunal considered the Applicant intended to be so.[4] As correctly summarised by the First Respondent’s submissions, the Tribunal found the Applicant’s claim to be a genuine applicant for entry and stay in Australia was undermined by:
“(a) its finding that the applicant was not enrolled in a registered course between 23 April 2011 and December 2011:
(b) the applicant was proposing to study a vocational education course when he had been in Australia for six and a half years and initially entered Australia holding a visa on the basis of enrolment in a bachelor degree:
(c) its finding the applicant had enrolled in a course offering a diploma in marketing only as a result of the Tribunal inviting him to attend a hearing:
(d) the lack of detail or explanation as to how his asserted “personal life difficulties” prevented him from studying between August 2013 and May 2014:
(e) the applicant had not yet commenced or completed any studies at a degree level and had instead obtained certificates and diplomas. This academic record was described as “not particularly good” in the context of a six and a half year stay in Australia:
(f) his proposed further studies would do little to assist him in operating a future business in India in light of the studies already undertaken. The Tribunal considered the current enrolment was designed to prolong his stay in Australia. The Tribunal made this finding in light of the evidence and material before it, including the applicant’s evidence at the hearing.”[5]
[4] Migration Review Tribunal Decision Record at [34].
[5] First Respondent’s Outline of Submissions filed on 9 June 2015at [25].
The Tribunal concluded, at paragraph 52 to 53 of the Decision Record, as follows:-
“52. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).
53. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.”[6]
[6] Migration Review Tribunal Decision Record at [52] to [53].
Consideration
As indicated earlier in these Reasons, the Applicant's Application does not identify any ground of jurisdictional error. Rather, he wishes to again agitate the merits of his visa application. That is not a matter for this Court and there is, thus, no prospect of the Applicant succeeding in his application for judicial review.
Further, on a careful reading of the Tribunal decision, there is no jurisdictional error attending same. The Tribunal made findings on the basis of the evidence and materials before it, and those findings were open to it. It applied the correct legal principles, identified all relevant issues for its consideration, and afforded to the Applicant procedural fairness. It concluded that the Applicant had no intention of undertaking or completing a degree course in Australia and such lack of intention existed from the outset.
Accordingly, the Application for reinstatement will be dismissed and costs should follow the event. The costs as claimed by the First Respondent are in accordance with this Court’s schedule scale of costs and are reasonable in all the circumstances.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 19 August 2015
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