SIROHI v Minister for Immigration
[2013] FCCA 1961
•29 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIROHI v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1961 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal – no matter of principle – application dismissed. |
| Legislation: Education Services for Overseas Students Act 2000, s.20. |
| Applicant: | NAVEEN SIROHI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1413 of 2012 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 23 April 2013 |
| Date of Last Submission: | 17 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 29 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed 8 November 2012 be dismissed.
The First Respondent’s name be amended to Minister for Immigration and Border Protection.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1413 of 2012
| NAVEEN SIROHI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The Applicant seeks judicial review of a decision of the Migration Review Tribunal made on 10 October 2012 which affirmed a decision of a delegate of the First Respondent to refuse the Applicant a student visa.
The Applicant is a citizen of India and came to Australia in December 2007 pursuant to the grant of a Subclass 573 student visa.
A visa application was lodged with the Department in September 2011 and soon after, the Department sent the Applicant an email seeking that:
… he provide comments on or responses to information before the Department indicating he had not been studying between 29 May 2010 and 17 July 2010 and that he was not enrolled in a registered course approved for study for international students between 25 August 2010 and 2 July 2011.
In November 2011, the Applicant’s appointed migration agent responded by e-mail to the Department stating that the “applicant’s first cousin had had a serious accident during that time which stressed the applicant’s whole family, including the applicant.” The Applicant had returned to India to visit his cousin between January and March 2010 following the accident. Upon returning to Australia, the Diploma of Hospitality Management which the Applicant was undertaking was completed by him in August 2011.
In refusing the application in December 2011, the delegate found (at paragraph 31 of the Tribunal’s decision):
… the applicant had not studied between 12 January – 23 September 2008; 12 December 2009 – 8 April 2010 and 29 May 2010 – 17 July 2011. The delegate noted that the applicant was outside Australia between 30 January – 28 March 2011, having left Australia many months after his cousin’s claimed car accident. The delegate found that the applicant had not provided an acceptable explanation for the 27 months during which he had not been studying as the holder of a student visa.
After lodging an application for review of the delegate’s decision, a hearing was held by the Tribunal on 6 August 2012. The Applicant submitted that within the first few months of coming to Australia he completed an English language course and then started studying a Certificate III and Diploma in Hospitality between 2008 and March 2009. Due to not passing all the required subjects, the Applicant completed supplementary assessments during 2009. The Applicant also submitted that he studied “almost all year” during 2010, from March of that year.
At paragraphs 46 to 49, the Tribunal says relevantly as follows:
46. By the end of 2010, the applicant had a few subjects remaining to complete his Diploma of Hospitality. He returned to India for a couple of months in early 2011 to see his cousin who had been injured in a car accident. On his return he approached his education provider about what he needed to do to complete the Diploma in Hospitality. He was told to wait by the education provider while the Dean worked out what he needs to do. The applicant asked every week about what he needed to do and eventually decided he wanted to go and study elsewhere. He was told he needed to provide a release letter from the education provider in order to study at a different education provider. He made three requests during this time to be granted a release letter by the education provider. He then found out that another college, the Institute of Hotel Management (IHM), did not need a release letter before they would enrol him. He enrolled at the IHM in March 2012, began studying in May 2012, completed a Certificate III in Cookery by June 2012 and is about to begin studying a Certificate IV.
47. The applicant knew that the last student visa he held expired in approximately October 2011 and that the conditions of that student visa included that he was continuously studying and enrolled.
48. The Tribunal put to the applicant under s 359AA of the Act that it had information before it from Department records about when the applicant had been studying and/or enrolled in Australia that, without any other evidence from the applicant, would be the reason or part of the reason for affirming the decision under review. The tribunal put to the applicant that the records indicated that the applicant had not been enrolled in a registered course of study between May 2010 and June 2012, with the possible exception of the period July – August 2010.
49. The applicant stated that he understood the information. The Tribunal explained the relevance of the information being that the tribunal may decide it shows the applicant was not studying between May 2010 and June 2012, which may be a relevant matter that leads the Tribunal to decide that the applicant is not a genuine applicant for entry and stay as a student or may also be a reason the Tribunal may decide it was not satisfied the applicant had complied substantially with conditions that applied to his last held substantive visa. The applicant stated that he understood the relevance of the information and chose to respond to the information immediately at the hearing.
When asked what evidence the Applicant had to show he had been studying after May 2010 it was noted in the decision that:
54. The applicant referred to the three invoices he had provided dated 4 November 2010, 13 January 2011 and 29 April 2011. The Tribunal asked the applicant why these invoices would necessarily be evidence of him studying at that time, as opposed to simply paying outstanding course fees for studies undertaken before May 2010. The applicant referred the Tribunal to the academic transcript from the education provider which he had provided to the Tribunal and was dated 22 March 2012. The Tribunal put to the applicant that the academic transcript did not state when any of the subjects referred to in that transcript were undertaken or completed and only referred to a start date for the diploma in 2008. The applicant stated he would contact the education provider immediately after the hearing to obtain a more detailed academic transcript which showed when he had undertaken and completed each course referred to in that transcript.
55. The Tribunal advised the applicant that it still had significant concerns about the fact the Department records indicated he was not enrolled for almost all the time between May 2010 and June 2012. The Tribunal put to the applicant that while it may accept that his travel to India in early 2011 explained why he was not enrolled during that time, this left a period of approximately 6 months in the second half of 2010 and 15 months during 2011 and 2012 when he was not enrolled in a registered course.
The Tribunal ultimately determined that:
64. … based on the evidence before it from the relevant Department records and information provided by the applicant, that the applicant was not enrolled in a registered course of study during the relevant period… the Tribunal does not accept the receipts or the transcripts from the education provider as evidence that he was undertaking studies during the relevant period because the receipts may be payments for studies undertaken at other times and the transcripts do not indicate when the subjects referred to in those transcripts were undertaken or completed.
67. The Tribunal considers the nature and significance of the applicant’s breach of the condition of the previous visa to be substantial given the centrality of being enrolled to the purpose of the grant of a student visa and also the length of time the applicant was in breach of the condition compared to the life of the previous visa (being almost one third of that time – approximately 13 to 46 months).
70. The Tribunal gives the applicant the benefit of the doubt and accepts the evidence that his cousin was injured in a motor vehicle accident and that this may have been one of the reasons why the applicant returned to India for several months at the beginning of 2010. However, the Tribunal notes that the applicant returned to India some months after his cousin was released from hospital and does not accept that the applicant’s cousin’s injuries were the sole or predominant reason for the applicant returning to India or for the applicant remaining in India for that length of time.
71. Further, the Tribunal does not accept that the fact the applicant was undertaking “supplementaries” or that he was negotiating for a transfer to another education provider as sufficient justification for why he was not enrolled in a registered course of study during the relevant period. The Tribunal also notes the applicant did not state that he was unaware that he was in breach of a condition of the previous visa during the relevant period or that the Department had misled the applicant in relation to whether he was in breach of the condition of the previous visa during that time.
72. Accordingly, the Tribunal finds that the nature and significance of the breach, and the length of time the applicant was in breach of the condition, outweigh the factors claimed by the applicant to be the reason why he was substantially complying with the condition of the previous visa despite not being enrolled in a registered course of study during the relevant period.
74. In this case, the Tribunal finds that the applicant was, and was aware that he was, in breach of the condition 8202 of the previous visa during the relevant period because he was not studying and was not enrolled in a registered course of study during that time. The Tribunal does not accept the applicant’s explanations for why this occurred as sufficient explanation for why he was so in breach.
Grounds of Review
The Applicant seeks that the Court make the following orders:
1. An order that a writ of certiorari be issued quashing the decision of the second respondent dated 10 October 2012.
2. An order that a writ of mandamus be issued requiring the second respondent to re-determine the application for a subclass 572 visa.
3. An order that the first respondent pay the applicant’s costs.
The Applicant relies on 2 grounds. They are:
1. In making a decision to affirm the first respondent’s refusal of a subclass 572 visa the second respondent made a finding for which there was no evidentiary basis.
Particulars
(a) The second respondent found that the applicant was not enrolled in a registered course of study between May 2010 – July 2010 and August 2010 – July 2011.
(b) In fact the applicant had provided the second respondent with an Overseas Student Confirmation of Enrolment No 238BBD92 which confirmed that he had been enrolled in a registered course of study between 15 March 2010 and 31 July 2011.
2. The second respondent failed to take into account a relevant consideration.
Particulars
The second respondent failed to take into account an Overseas Student Confirmation of Enrolment No 238BBD92 provided by the applicant to the second respondent which confirmed that the applicant had been enrolled in a registered course of study between 15 March 2010 and 31 July 2011.
The substance of the Applicant’s complaint is that the tribunal failed to have regard to the copy of Overseas Student Confirmation of Enrolment No 238BBD92 that he had provided.
The Applicant provided affidavit evidence that the document was given to the Tribunal: see Applicant’s affidavit filed 8 November 2012 at para.3 and exhibit B.
The Applicant gave evidence before me and was cross-examined on this issue.
Post-Hearing Submissions
Further to the Orders made by me on 23 April 2013, that the parties make any application to make further submissions in the matter on or before 10 May 2013, both the Applicant and the Respondent filed post-hearing submissions.
In the document titled, “Applicant’s Final Submissions”, the Applicant clarified as follows:
13. I provided a record of the Certificate of Enrolment No. 238BBD92 during the hearing on 6 August 2012 to a hearing officer for the officer to copy. I have not acted dishonestly in regard to the question of whether I presented this certificate to the Tribunal and I have sworn under oath that I presented this certificate to the Tribunal during the abovementioned hearing.
The Applicant goes on to say:
15.1 I did not have access to nor knowledge of the PRISMS record before the Tribunal made its decision.
15.2 Having now viewed this record, I have found many errors in this record, perhaps due to deficiencies by my former education provider, the Holmes Institute.
15.5 I had no knowledge or notice of any of the cancellations of Certificate’s of Enrolment listed in the PRISMS record from either the Holmes Institute or the Department.
15.6 I understand that the Tribunal had access to this record during the hearing and when making the decision.
15.7 The information in the PRISMS record was never put to me by the Tribunal for me to address. If the information had been put to me, I would have been able to address many of the errors in the record.
At paragraph 16 of the Applicant’s document, the Applicant refers specifically to the academic transcript from the Holmes Institute. The Applicant says:
16.1 I undertook several of the subjects and their supplementaries listed in the transcript during the periods that the Tribunal claimed I was not studying.
16.2 The Tribunal stated in its decision that it placed little weight on the transcript as the transcript did not provide dates of commencement and completion of the listed subjects.
16.3 The Tribunal provided me with one week after the hearing to obtain documents from my education provider (the Holmes Institute) with dates relating to the subjects on the transcript.
16.4 Holmes Institute could not provide me with the documents I requested and stated this in a letter to the Tribunal dated 15 August 2012.
16.5 There is no evidence that the Tribunal made any sort of enquiries regarding the dates of my subjects despite having the power to demand such information from the Holmes Institute. I did not have the right to demand information from the college.
The Applicant goes on to say that at the Tribunal hearing, he provided a number of receipts relating to his study, however the Tribunal placed little weight on these as “… the date of undertaking the subject detailed in the receipt may be either before or after the date of the payment”. According to the Applicant the Tribunal did not investigate these receipts any further with his education provider. The Applicant also submits that he was never given notice that he had breached the conditions of his visa, either by the Holmes Institute or the Department, notwithstanding the requirements under s.20 of the Education Services for Overseas Students Act 2000.
In the Minister’s Post-Hearing Submissions, the Minister makes specific reply to paras.13 and 15.7 of the Applicant’s Final Submissions.
In response to the Applicant’s claim that he provided his confirmation of enrolment to the Tribunal at the hearing the Minister notes:
3.1. Whether the applicant provided the CoE to the Tribunal at the hearing is a factual question to be decided on the balance of probabilities.
3.2. The applicant’s allegation that he provided the CoE to the Tribunal at the hearing is: (a) undermined by evidence that the CoE was not contained in the Tribunal’s file relating to the matter, and (b) is not supported by the transcript of the hearing. Given also that the applicant’s evidence is based only on his memory of what occurred at the Tribunal hearing on 6 August 2012, the more likely fact is that the applicant did not provide the CoE to the Tribunal.
3.3 If the Court makes that finding, then the factual premise for the applicant’s second ground of review falls away.
The Minister responded to the Applicant’s second claim by stating:
4.1. The transcript of the Tribunal hearing clearly shows that the Tribunal explained to the applicant the information that supported its finding that the applicant was not enrolled in a registered course of study for the periods May – July 2010 and August 2010 – July 2011.
4.2. The transcript also clearly shows that the Tribunal gave the applicant ample opportunity to provide other information to show that, despite the information in the PRISMS record, the applicant was enrolled in fact during these periods.
Conclusion
I have had the opportunity to see the Applicant give evidence, and had the benefit of the transcript from the tribunal hearing. I also have regard to the absence of the document from the tribunal file, although keeping in mind that documents are sometimes missing from files as ordinary experience in courts and offices demonstrates.
Considering the evidence as whole, I am not persuaded that the document was provided to the Tribunal by the Applicant.
As a result, the Tribunal acted upon the material before it. The Tribunal gave the Applicant an opportunity to respond at the hearing. I am not persuaded that the Tribunal failed to accord the Applicant procedural fairness.
I am not persuaded that this is an issue which required the Tribunal to attempt to make further enquiries. It is not incumbent on the Tribunal to carry out a detailed investigation of the educational institutions.
In the circumstances, I must therefore dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 29 November 2013
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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