Sekhon v Minister for Immigration

[2018] FCCA 1984

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEKHON v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1984

Catchwords:
MIGRATION – Application for judicial review – whether an error of law or procedure occurred – whether the Tribunal correctly interpreted meaning of genuine student – no error of law or procedure – Tribunal correctly found Applicant was not a genuine student under the Migration Regulations 1994 – application dismissed.

Legislation:
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Federal Circuit Court Rules 2001, r.44.12(1)(a)

Applicant: PAWANDEEP SINGH SEKHON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1195 of 2017

Judgment of: Judge McNab

Hearing date: 10 July 2018

Date of Last Submission: 10 July 2018

Delivered at: Melbourne

Delivered on: 10 July 2018

REPRESENTATION

Applicant in Person

Counsel for the Respondent: Ms McInnes

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. Pursuant to r. 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application filed 6 June 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1195 of 2017

PAWANDEEP SINGH SEKHON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT DELIVERED

EX-TEMPORE (REVISED FROM TRANSCRIPT)

Introduction

1. I dismiss the application filed 6 June 2017 pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (“the Rules”). The application sought a review of a decision made orally on 11 May 2017, a written record of which was provided on 3 July 2017.

2. Before the Administrative Appeals Tribunal (“Tribunal”), the Applicant sought a review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse the Applicant a Student Temporary (Class TU) (subclass 572) visa (“Visa”) under the Migration Act 1958 (Cth) (“the Act”).

Background

1. The background to this matter was accurately set out in the outline of submissions provided by the First Respondent. This is extracted exactly below (citations omitted):

   a)The Applicant is a 28 year old Indian male who first arrived in Australia in 2009.

   b)On 1 December 2015, the Applicant applied for the Visa. The Applicant was issued Confirmation of Enrolment certificates in relation to a Certificate IV in Commercial Cookery and a Diploma of Hospitality.

   c)On 8 December 2015, the Department sent the Applicant a letter requesting that he provide further information within 28 days. The Applicant was requested to provide, amongst other things, evidence of his English language proficiency and financial capacity.

   d)On 26 February 2016, the Applicant’s representative requested an extension of time to provide the required documents. On 3 April 2016, the Applicant’s representative stated that he was still waiting for documents from the Applicant. No documents were submitted to the Department.

   e)On 18 August 2016, the delegate refused the visa application. The delegate found that the Applicant did not meet the English language of financial requirements for the grant of the visa in Schedule 5A of the Regulations.

   f)On 7 September 2016, the Applicant applied to the Tribunal for review of the delegate’s decision.

   g)On 24 April 2017, the Tribunal invited the Applicant to appear at a hearing on 11 May 2017. The invitation also requested the Applicant to provide certain information to the Tribunal, including documents demonstrating his English language proficiency and financial capacity. The Applicant responded to the invitation by indicating that he would attend the hearing. However, the Applicant did not submit any of the requested information.

   h)On 11 May 2017, the Applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal made an oral decision at the hearing to affirm the delegate’s decision. A written statement of the Tribunal’s decision and reasons was provided to the Applicant on 3 July 2017.

Grounds of review

1. The grounds of review set out in the application filed 6 June 2017 are exactly as follows:

   1.I was holder of a student visa and applied for student visa extension and application has been refused due to not meeting student visa criteria. An application was made to AAT for merit review of this application as DIBP and AAT has made an error in law while deciding on my application.

   2.My visa has been refused as I did not meet the legal requirement in clause 572.223 in Schedule 2 of the Regulations.

   3.DIBP case officer has further said that a direction 53 has been used to decide on this matter. Case officer further said that meet clause 572.223(2)(a), specifically clauses 5A407 and clause 5A408.

   4.Direction No 53 clearly states that an application who is genuine and has intention to study.

   5.I have been studying for long time in Australia and has completed multiple courses and if I was not a genuine student I would never be able to complete any course at all. That clearly reflects that I am genuine student for student visa extension.

   6.DIBP and AAT has misinterpreted definition of Genuine student and have refused my application for student visa extension on the basis of that. This a complete error in Law and would like to request FCC to take look at this matter again establish that a Jurisdictional error and FCC need to set new orders to remit this decision back.

   7.Clear error in law has been made when DIBP and AAT has define genuine Applicant incorrectly. This is unfair to me as well and I would like to apply to FCC to take another look at this matter.

   8.I am happy to provide further supporting documents form my school that have competed my studies to provide that I am genuine student.

   9.I would like to request to FCC to set aside old orders and replace by new orders and accept my application for review as a valid application and decide on this matter at FCC.

Consideration

1. The Applicant, enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality, was required to fulfil a number of criteria to satisfy his Visa application. The issue before the Tribunal was whether the Applicant had fulfilled the criteria under cl. 572.223 of sch. 2 of the Regulations. The Tribunal noted at [25] of its decision that:

   The relevant criteria are found at Div. 3 of Pt. 4 to Schedule 5A of the Regulations. In particular in relation to this case, cl. 5A407 provides requirements for the English language proficiency assessment level and cl. 5A408 provides for the financial capacity assessment level. Both criteria require that the Applicant must give evidence to demonstrate his ability to meet these requirements.

2. On 24 April 2017, the Tribunal forwarded a letter to the Applicant, setting out in detail the documents required by the Tribunal. At [5] of the letter, the Tribunal requested from the Applicant:

   Documents that demonstrate you have sufficient funds or access funds to pay course fees, living costs, school costs where relevant, and travel costs, over the relevant period…

   and at [6]:

   Evidence that you meet the English language proficiency requirements.

3. The Tribunal notes at [10] of its decision, the detail of the documents requested. At [12] of the decision, it was noted that the Applicant did not respond to the invitation to provide documents, and provided nothing when he appeared before the Tribunal. At [13] of its decision, the Tribunal remarked:

   You say you haven’t provided any English evidence [sic], that you need time to book an IELTS test, which you can complete if given time.  You also say that if given further time, you will be able to provide financial evidence.

4. The Tribunal further noted that the Applicant needed to have been in a position to provide the requested evidence in 2015, and that he had not chosen not to book an IELT test or obtain any evidence of his English proficiency between 2015 and the time of the Tribunal hearing.

5. The Applicant before me accepted that the statement of the Tribunal at [12] was correct. The Tribunal stated that:

   You did not respond to the invitation, and provided nothing, but came to today’s hearing and say there are a number of things you wish to talk about.  You say you had a gap in your studies, and had problems with your family, but are now studying and attending classes.

6. The Applicant, who appeared unrepresented but with the assistance of a Punjabi interpreter, stated today that he had some advice from his lawyer and that advice was either bad, or he did not understand that advice. I asked him why he made that statement, but no greater detail was forthcoming. Nothing has been put before the Court which would suggest that there has been any fraud of any kind that may affect the matter.

Conclusion

1. In these circumstances, I am not satisfied that the Applicant has raised an arguable case for relief and I dismiss the application, pursuant to rule 44.12(1)(a) of the Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  24 July 2018