SHRESTHA v Minister for Immigration

[2014] FCCA 3012

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3012

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa – where applicant had no certificate of enrolment or offer of enrolment – tribunal decision not affected by jurisdictional error – application dismissed.

Legislation:  

Migration Regulations 1994, reg.572.223 of Schedule 5A

First Applicant: JAPAN SHRESTHA

Second Applicant: AKANCHHA SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 845 of 2014

Judgment of: Judge Jarrett

Hearing date: 17 December 2014

Date of Last Submission: 17 December 2014

Delivered at: Brisbane

Delivered on: 17 December 2014

REPRESENTATION

The First Applicant appeared on his own behalf

No appearance by the Second Applicant

Solicitor for the First Respondent: Ms Slack

Solicitors for the Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application be dismissed.

2. The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 845 of 2014

JAPAN SHRESTHA

First Applicant

AKANCHHA SHRESTHA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application for judicial review of a decision of a migration review tribunal that was given on 21 August, 2014.  That decision affirmed a decision of a delegate of the first respondent made earlier in May 2013 to refuse to grant to the applicant a Student (Temporary) (Class TU) visa. 

2. There seems to be no dispute that the applicant is a citizen of Nepal. He lodged an application for a Student (Temporary) (Class TU) visa on 8 March, 2013. There is a second applicant to these proceedings and she was included in the application as a member of the first applicant’s family unit.

3. The application was refused by the delegate of the first respondent because the delegate was not satisfied that the applicant met the requirements set out in Schedule 5A of the Migration Regulations 1994 with respect to financial capacity that applied to the applicant’s application. 

4. Clause 572.223 of Schedule 5A of the Regulations contains criteria that an applicant for a student visa must meet if the application is to be successful. It sets out how the Minister must assess both financial capacity and some other matters.

5. The delegate determined that the financial capacity criterion was not met by the first applicant in this case. 

6. He applied for a review of the delegate’s decision by a migration review tribunal. 

7. On 17 July, 2014 the tribunal sent to the applicant a letter inviting him to appear before the tribunal so as to give evidence and present arguments relating to his application for the visa.

8. The letter is in a form commonly issued by migration review tribunals.  It sets out, clearly, the time and date of the hearing.  It also sets out, in some detail, the documents or information that the applicant was to bring with him to the hearing.  At the bottom of the first page of the letter the following appears:

   Additionally, please provide this information so that a decision can be made as quickly as possible.

   And thereafter, appears a list of documents that might be provided by the applicant to the tribunal.  The first two items in the list are these:

   1.  A copy of your current certificate of enrolment (COE) as required for the grant of a student visa.

   2.  Documents that show you are currently enrolled in a course or have an offer of enrolment in a registered course as required for the grant of a student visa.

9. The tribunal hearing took place on 21 August, 2014.  The applicant attended by telephone.  He makes no complaint about that.  At the conclusion of the hearing, the tribunal determined to refuse the application for the visa.  It did so on the basis that there was no evidence before the tribunal that the applicant was enrolled in or had a current offer of enrolment in any applicable course of study at the time of the tribunal’s decision. 

10. As to that matter, the tribunal recorded in its written reasons that were delivered the next day that the applicant gave evidence that he last studied in June, 2013 and that he did not have a current certificate of enrolment or a current offer of enrolment.  He told the tribunal member that he had asked the department if he had to study and was told that since he does not have a student visa, he does not have to study.  He told the tribunal that he therefore decided not to study and obtained a refund of his tuition fees.

11. The tribunal records that the applicant later told the tribunal that he was told by the department that he was not allowed to study because he did not have a student visa and that was why he did not have a certificate of enrolment or an offer of enrolment. 

12. The tribunal, as it was entitled to do, accepted the applicant’s first statements rather than his second statements and recorded that whilst the applicant was not obliged to study while holding a bridging visa, he was permitted to study while he held a bridging visa.  The tribunal formed the view that it was more likely than not that that is what the applicant was told when he made his inquiries of the department. 

13. None of that, however, is to the point because, as the tribunal set out in its reasons, the applicant’s claim to a student visa needed to be assessed against one of the subclasses that exist in respect of that visa.  As the tribunal points out in paragraph 20 of its reasons, the various subclasses are set out in schedule 2 of the Regulations.  The Regulations specify certain criteria that need to be satisfied at the time of decision before a visa can be granted. 

14. The tribunal records in paragraph 20 of its reasons that with limited exceptions, cll.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations, all require that at the time of a decision on a visa application, an applicant must be enrolled in or be the subject of a current offer of enrolment in a course of study that is a principal course and is of a type specified under reg.1.40(A) of the Regulations for the relevant subclass at the time of the application.

15. The tribunal considered whether the applicant came within any of the limited exceptions to that general proposition and determined that he did not.  He does not argue now that he did.  In those circumstances, the tribunal was correct to conclude that in the absence of evidence that the applicant held a current certificate of enrolment or a current offer of enrolment in a course of study that satisfied the regulations, it could not grant the visa. 

16. The tribunal determined that it could not grant the visa and refused the application.  The decision under review was affirmed. 

17. It is against that decision that the applicant now brings these proceedings.  In his application for review filed on 22 September this year, he specifies two grounds.  The first was that he was denied procedural fairness and was not given natural justice.  The second is that he believes that the law was not properly applied by the Migration Review tribunal in his application. 

18. As to the first matter, his discussions with me at this hearing made it clear that he was not complaining at all about any denial of procedural fairness or lack of natural justice.  That was a ground that was suggested to him by somebody else. 

19. But be that as it may, I have considered the submissions for the first respondent on that point and, having regard to those submissions, I am entirely satisfied that there was no lack of procedural fairness and no lack of natural justice given to the applicant.  He was notified of a hearing in which he was invited to bring the relevant information.  The information that he needed to bring was clearly spelled out in the invitation letter.

20. He accepted the invitation.  At the time of the hearing before the tribunal he simply did not and, having regard to his submissions today, was simply not in a position to satisfy the relevant visa criteria because he did not have a current certificate of enrolment or a current offer of enrolment in a course of study that satisfied the regulations.  The first ground of review has no merit. 

21. As to the second ground of review, as the applicant explained to me today, his complaint is that the delegate having decided that his visa ought to be refused because he could not satisfy the financial capacity requirements, the tribunal was limited to a reconsideration of that issue and, if it had reconsidered that issue, the tribunal would have arrived at a decision which was favourable to the applicant.

22. But the applicant’s argument misunderstands the process.  Whilst the tribunal’s function is to review the delegate’s decision that does not mean that it is confined only to the matters raised and considered by the delegate.  The tribunal’s function is to consider all of the matters that are to be considered for the grant of the particular visa involved.  The tribunal needs to be satisfied that each of the relevant criteria are met for the grant of the visa.

23. In this case, as I have already indicated, the applicant was unable to meet one of those criteria and his application was, in the circumstances, bound to fail. 

24. Finally, the applicant seems to argue that because he was told one thing by the department; that is, that it was not necessary for him to study and he was not obliged to study and therefore he did not study and he cancelled his enrolment and obtained a refund of the fees, the tribunal should, in some way, be precluded from relying on that to refuse his visa.

25. There are two things to say about that.  The first is whatever might have been said to him by the department that does not preclude the tribunal from determining the matter against him because the obligation on the tribunal is to apply the law.  To put it in legal terms, an estoppel does not operate against a statute.  The grant of a visa is an exercise of an obligation cast on the tribunal by the Migration Act and the regulations thereunder.  The tribunal can only do what the Act and Regulations allow it to do. 

26. In those circumstances, and notwithstanding what the applicant might have been told by somebody from the department, the tribunal was bound to decide the case in the way it did. 

27. Secondly, that the applicant might have been told that he did not have to study, does not mean that he did not have to comply with the relevant requirements to obtain the visa.  It is one thing for him to be told that he does not have to study and for him to make a decision not to do that based upon the advice he received.  It is another thing not to have a certificate of enrolment or an offer of enrolment for the purposes of satisfying the relevant visa criterion. 

28. The second ground, both as set out in the application for review and as articulated by the applicant today, has no merit.

29. As I have already indicated, the tribunal’s decision was clearly correct.  There is no reason to think that it is infected by jurisdictional error.  It is a privative clause decision and this court has no jurisdiction to review it. 

30. The application filed on 22 September, 2014 must be dismissed.

    RECORDED  :  NOT TRANSCRIBED

31. Ordinarily, in these types of applications, costs follow the event.  That is, the unsuccessful party is ordered to pay the successful party’s costs.  The court does not have to make that order where there are special circumstances that suggest that such an order is inappropriate, but impecuniosity and an inability to pay, is generally not seen as a special circumstance sufficient to displace the general rule.

32. In those circumstances, it is my view that an order for costs is appropriate.  There is no reason why the ordinary rule should not apply.  I will order the applicant to pay the first respondent’s costs in a fixed amount.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Deputy Associate: 

Date:  23 December 2014