Sohal v Minister for Immigration
[2014] FCCA 2820
•10 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOHAL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2820 |
| Catchwords: MIGRATION – Review of decision by the Migration Review Tribunal – whether the Applicant substantially complied with the requirements of last visa – study gap of 11 months – no evidence of financial capacity – grounds disclose no basis for finding jurisdictional error on the part of the Migration Review Tribunal. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994, cl.572.235, Sch.5A, Sch.8, condition 8202 |
| Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 Kim v Witton (1995) 59 FCR 258 Minister for Immigration and Multicultural Affairs v Modi (2001) 116 FCR 496 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| First Applicant: | SARABJIT SINGH SOHAL |
| Second Applicant: | RAMANDEEP KAUR |
| Third Applicant: | NEIL NIRAJ SOHAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2131 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 10 November 2014 |
| Date of Last Submission: | 10 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms J Randall-Smith |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application filed 4 December 2013 be dismissed.
The First Applicant pay the costs of the First Respondent fixed in the sum of $4,100.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2131 of 2013
| SARABJIT SINGH SOHAL |
First Applicant
| RAMANDEEP KAUR |
Second Applicant
| NEIL NIRAJ SOHAL |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
This is an application for judicial review of a decision by the
Migration Review Tribunal (“the Tribunal”) in which the Tribunal affirmed a decision of a delegate of the First Respondent – that is, the Minister – to refuse to grant the Applicant a temporary student visa.[1] The Applicant now seeks an order that the decision of the Tribunal be quashed.[2]
[1] Court Book filed 16 September 2014 at pp.94-100.
[2] Application filed 4 December 2013 at p.3.
Background
The Applicant arrived in Australia in 2009 on a student visa and he was enrolled in a Diploma of Hospitality from 28 February 2010 which was due to be completed on 12 June 2011. He was not enrolled in any course between 19 August 2011 and 27 July 2012. On 28 July 2012, the Applicant applied for the visa which is the subject of these proceedings:
On 8 August 2012 the Department of Immigration and Border Protection (the Department) wrote to the applicant through his appointed migration agent, inviting him to provide more information in support of his visa application. The Department also invited the applicant to comment on adverse information as follows (CB 10-17):
Information available to the Department indicates that you did not attend any course of study from 13 June 2011 to
29 July 2012. This is a study gap of more than 12 months, during which time you held a student visa with full study rights. Further, it appears that you were not enrolled in any course of study between 19 August 2011 and 27 July 2012, and therefore you were in breach of condition 8202 on your previous student visa.
You are entitled to comment on this information, and provide further documentation which will be considered in making a decision on your application.[3] (Original emphasis)
[3] First Respondent’s Contentions of Fact and Law filed 17 October 2014, p.2 at para.5.
On 5 September 2012, the Applicant’s migration agent wrote to the Department advising that the Applicant could not provide certain documents from India.[4] A number of documents were, however, provided in support of the visa application. On 12 September 2012, the delegate refused the visa application finding that:
·The Applicant’s educational history, as displayed on the Provider Registration and International Student Management System (“PRISMS”) indicated he was not enrolled in an approved course of study for an 11-month period between August 2011 and July 2012; and
·
There was also insufficient evidence provided at the time of the lodgement to satisfy the delegate that the Applicant met the financial requirements of Sch.5A of the
Migration Regulations 1994(“the Regulations”); and
·The delegate was not satisfied that the Applicant met the provisions of condition 8202.[5]
[4] Court Book filed 16 September 2014 at pp.18-27.
[5] First Respondent’s Contentions of Fact and Law filed 17 October 2014, p.2 at paras.7.1-7.2.
On 3 October 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision:
On 10 October 2013, the Tribunal wrote to the applicant through his migration agent, inviting him to appear at a hearing before the Tribunal on 7 November 2013. The hearing invitation provided, among other things, for the applicant to provide
(CB 72-74):
An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.[6]
[6] Ibid at para.9.
The Applicant did not provide any further material to the Tribunal prior to 7 November 2013, but did appear on that day to give evidence and present arguments and was represented by a migration agent. On
7 November 2013, the Tribunal affirmed the decision under review[7] and, on 4 December 2013, the Applicant filed this application for judicial review.
[7] Court Book filed 16 September 2014 at pp.94-99.
The Tribunal’s decision
The issues before the Tribunal were as follows:
·Whether the Applicant had substantially complied with conditions that applied to his last substantive visa as required by cl.572.235 of the Regulations;
·Whether the Applicant was a genuine applicant for entry and stay in Australia as a student and satisfied the requirements of cl.572.223 of the Regulations; and
·Whether the Applicant met the financial capacity requirements set out in Sch.5A of the Regulations.
The Tribunal found that condition 8202 applied to the Applicant’s last substantive visa and, in particular, that he was required to be enrolled in a registered course while he held the visa. At the Tribunal hearing, the Applicant conceded that he was not enrolled between
19 August 2011 and 27 July 2012.
The Applicant provided the following explanation to the Tribunal as to why he had not been enrolled between those periods.
·First, that he had suffered from a medical condition after an operation; and
·Second, that he was “in India for 3 weeks before returning to Australia to rest after his operation and thereafter suffered from a fever and congested lungs and was … diagnosed with bronchitis”.[8]
[8] First Respondent’s Contentions of Fact and Law filed 17 October 2014, p.3 at para.17.2
The Tribunal made a number of findings in respect to the Applicant’s failure to maintain enrolment.
The Tribunal was not satisfied the Applicant was “prevented from maintaining enrolment in a registered course and/or attending classes due to a medical condition or conditions”[9] for the entire relevant period:
The Tribunal rejected a number of the applicant’s claims that doctors in Australia could not provide medical reports or release information to the applicant (CB 98, [23]) and placed little weight on medical evidence submitted by the applicant (CB 98, [22]).[10]
[9] Ibid at para.18.1.
[10] Ibid.
As the Tribunal did not accept the explanation given by the Applicant, the Tribunal found that the Applicant had failed to meet the visa conditions. The Tribunal considered that, as the Applicant had completed only one hospitality course in four and a half years in Australia, he had a “poor academic record” and that indicated that he was not “genuinely intend[ing] to pursue studies in
Australia (CB 98, [25])”.[11][11] First Respondent’s Contentions of Fact and Law filed 17 October 2014, pp.3-4 at para.18.3.
The Tribunal found that:
·The Applicant had not complied with condition 8202 of his visa;
·The Applicant was not a genuine applicant for entry and temporary stay in Australia within the meaning of cl.572.223 of the Regulations; and, additionally
·The Applicant had not met the financial capacity requirements set out in Sch.5A of the Regulations.
Grounds of Review
In this application for review, the Applicant set out three grounds:
1. S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised
2. I am not happy with tribunal decision, applying for judicial review for legitimate decision
3. I do have exceptional circumstances beyond the application lodgement previously[12]
[12] Application lodged 4 December 2013 at p.3.
The Applicant filed an accompanying affidavit which attached a letter dated 4 December 2013.[13] That letter stated that:
·The Applicant wished to study in Australia;
·He had not been given a chance to give his side of the story;
·He had been denied procedural fairness;
·He was studying to further his education and that the breaches of condition 8202 were as a result of matters outside of his control; and
·There were exceptional circumstances.
[13] Affidavit of Sarabjit Singh Sohal filed 4 December 2013 at Annexure A.
The Applicant further stated that he had “a hurdle in the form of stress”[14] which has been due to health matters and that he requested the Court to review the Tribunal decision and stated that he could bring all the evidence on the hearing day to prove his claims.
[14] Affidavit of Sarabjit Singh Sohal filed 4 December 2013, Annexure A at p.2.
In support of the application today, the Applicant has relied on the letter of 4 December 2013. He has stated that he was objecting to the fact that he had not been given sufficient time to respond and that his parents did not live in India and it was, therefore, difficult to obtain the statement from the bank which was necessary in order to fulfil the financial requirements as set out in Sch.5A of the Regulations.
The First Respondent’s submissions
The First Respondent, in written submissions,[15] says:
·First, that the application for review does not disclose any jurisdictional error on behalf of the Tribunal and that the Applicant’s complaints are really only a request for the Court to engage in a merit review of his claim which is not something that the Court can do.[16]
·Second, the Applicant also contends that he was not afforded procedural fairness. The First Respondent submits that:
The Tribunal correctly applied the law, noting that whether the applicant had complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case.[17]
[15] First Respondent’s Contentions of Fact and Law filed 17 October 2014.
[16] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
[17] First Respondent’s Contentions of Fact and Law filed 17 October 2014, p.5 at para.23. See Kim v Witton (1995) 59 FCR 258 at 271; Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436; Minister for Immigration and Multicultural Affairs v Modi (2001) 116 FCR 496.
The Tribunal’s findings were findings of fact and they were open to the Tribunal on the material before it. In particular, the Tribunal did take into account the medical evidence and it was a matter for the Tribunal as to what weight the Tribunal gave to that evidence. The Tribunal was “entitled to take issue with the veracity and adequacy of medical evidence provided by the applicant in rejecting his explanation relating to his study gap”.[18]
[18] First Respondent’s Contentions of Fact and Law filed 17 October 2014, p.5 at para.24.
The First Respondent also submits that the Tribunal complied with the procedural fairness requirements that are set out in the
Migration Act 1958(Cth) (“the Act”). The Applicant was put on notice that the issue concerned his failure to comply with condition 8202 of his previous visa and he was also put on notice of the requirement to meet the financial capacity criteria in Sch.5A of the Regulations.
The Applicant was asked to provide an explanation for his study gaps and to provide evidence of funds from an acceptable source. He attended a hearing and was able to present his case. The
First Respondent submits that, on the basis of the matters that were determined by the Tribunal, there were no grounds to set aside the Tribunal’s decision and that there were several bases upon which the Tribunal rejected that the decision of the delegate should be set aside including:
·The question of the failure to comply with Sch.5A of the Regulations;
·The failure to comply with condition 8202; and
·The failure to meet the requirements of being a genuine applicant for temporary stay in Australia for the purposes of study.
Conclusions
If I can first turn to the application for review itself.
·First, the application for review is an application for judicial review by the Court. It is not a re-hearing of the application or an opportunity for the Applicant to re-argue matters about which the Tribunal has made findings of fact.
·Second, the application in itself does not disclose any ground upon which the Court could find that the Tribunal had made an error in the exercise of its jurisdiction.
Ground one, as it is set out in the application, is simply a statement to the effect that an application for review of the Tribunal’s decision may be made.[19] That is correct in itself but it is not a ground for granting the relief sought by the Applicant. Ground two states that the Applicant is unhappy with the decision.[20] As I have stated before, an application for judicial review is not a re-hearing of the Applicant’s case. The Court’s powers extend only to determining if the Tribunal made a jurisdictional error and do not – except in very limited circumstances – involve a reconsideration of the findings of fact made by the Tribunal.
[19] Application filed 4 December 2013 at p.3.
[20] Ibid.
As the First Respondent pointed out, the findings made by the Tribunal on the evidence and the weight which the Tribunal determines should be given to that evidence are matters for the Tribunal and not matters about which the Court would interfere.
Ground three appears again to seek a further hearing of the original application so that the Applicant can produce new material.[21] The Applicant, however, has not established any basis upon which the Court could give consideration to evidence that was not before the Tribunal and, indeed, no such evidence has been produced.
[21] Ibid.
The Applicant claims that he was not given sufficient time by the Tribunal to explore the issues. The Applicant should have been well aware from the decision of the delegate on 12 September 2012 what the issues were. The same issues were the ones before the Tribunal. It was over 12 months from when the Applicant lodged his application until he was contacted by the Tribunal and asked to provide an explanation for the gaps in his enrolment and produce evidence to support this. The Applicant had over a year to obtain documents from India or elsewhere.
It was four weeks from when the Tribunal wrote to the Applicant advising him that he would need to provide an explanation[22] and when he appeared before the Tribunal. The Tribunal complied with the requirements of the Act with respect to procedural fairness in that:
·The Applicant was notified of what the issues were;
·He was invited to provide evidence; and
·He was invited to attend a hearing and argue his case.
[22] Court Book filed 16 September 2014 at pp.71-74.
In my view, the Applicant merely wishes to have another go at arguing the merits of his claim. There is not any basis, however, on which the Court could find that the Tribunal made any jurisdictional error in the conduct of his case and nor has the Applicant suggested any such error.
On that basis the application must be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 3 December 2014
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