Vatti v Minister for Immigration
[2014] FCCA 958
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VATTI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 958 |
| Catchwords: MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Student (Temporary) (Class TU) visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Rahman v Minister for Immigration and Citizenship [2012] FCA 1312 Minister for Immigration and Citizenship v Li [2013] HCA 18 |
| Applicant: | PRADEEP KUMAR VATTI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1561 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 28 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 28 April 2014 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr Hornsby |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The Application filed 23 September 2013 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1561 of 2013
| PRADEEP KUMAR VATTI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
By his Application filed 23 September 2013, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 30 August 2013, in which the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a Student (Temporary) (Class TU) visa .
The grounds of the Application as set out by the Applicant are as follows:-
“1. S.477, Judicial review can be lodged after 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”
The Applicant filed with his Application, an Affidavit sworn by him on 20 September 2013. In that Affidavit, he again reiterated that he was not happy with the Tribunal decision and said in paragraph 2 therein:-
“I really want to study in Australia, I can’t go to my home country without my qualification”
That was the extent of the Affidavit in support.
The First Respondent filed a Response on 30 September 2013 noting that the application for judicial review did not provide any particulars or any legal ground of review and asserted that the application for judicial review did not establish any jurisdiction error in the decision of the Tribunal. In paragraph 4 of the Response, the First Respondent claimed the application for judicial review did not raise an arguable case for the relief claimed and should accordingly be dismissed pursuant to r.44.12 of the Federal Circuit Rules 2001 (Cth) (‘the Rules’).
When the matter came before Registrar Caporale on 20 November 2013, he ordered, amongst other orders, that the Applicant on or before 22 January 2014, file and serve:-
a)any amended application including any additional grounds of review with complete particulars of each ground; and
b)any affidavits.
Further, the Applicant was ordered to file and serve written submissions and list of authorities 14 days before the hearing. The Applicant complied with neither order. The matter was on that day set down for a show cause hearing to proceed before me this day.
Accordingly, the issue for determination is whether the Applicant raises an arguable case for the relief claimed (r.44.12(1) of the Rules). In order to satisfy the Court, the Applicant is confined to the relief sought and the grounds mentioned in the Application for judicial review filed 23 September 2013 (r.44.13(1) of the Rules). If the Court is not so satisfied it may dismiss the application (r.44.12(1) of the Rules). I note that pursuant to r.44.12(2) of the Rules, a dismissal of these proceedings because the Court is not satisfied that the Applicant has raised an arguable case for the relief claimed, is interlocutory.
Background
On 23 September 2011, the Applicant, who is a citizen of India, applied to the Department of Immigration & Citizenship (as it then was) (‘the Department’) for a Student (Temporary) (Class TU) visa. On 7 November 2011, the delegate refused to grant the visa on the basis that the Applicant did not satisfy cl.572.22(3) of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
The delegate found the Applicant had not provided evidence that he met the Schedule 5A of the Regulations language criteria for his assessment level (being cl.5A404 of Schedule 5A of the Regulations). The delegate also found when considering whether the Applicant was a genuine student, that the Applicant had a study gap from 8 July 2010 to 26 September 2011 and since arriving in Australia on 4 April 2009 had only completed a Certificate III in English as a Second Language (‘ESL’) from Southern Cross Education Institute dated 2 June 2009.
On 1 December 2011, the Applicant, through his migration agent, applied for a review of the delegate’s decision. On 21 June 2013, the Tribunal wrote to the Applicant to invite him to attend a hearing on 22 July 2013. The Applicant’s representative subsequently requested a postponement of that Tribunal hearing and accordingly, on 22 July 2013, the Tribunal wrote to the Applicant to advise that it had granted the request for postponement and invited the Applicant to a rescheduled hearing on 30 August 2013.
That invitation dated 22 July 2013 to attend a hearing on 30 August 2013 also invited the Applicant to provide the Tribunal with the following:-
“1. A certificate of enrolment as required by cl.572.222, or evidence that you are enrolled in, or are the subject of a current offer of enrolment in a registered course as set out in cl.572.231.
2. Evidence of all your academic achievements and evidence of your enrolment in a registered course or courses since your arrival in Australia for the purposes of cl.572.223(2)(a)(ii).
3. Current evidence that you satisfy English language, financial capacity and ‘Other’ requirements in any of the alternative ways applicable for your assessment level set out in Schedule 5A for the purposes of cl.572.223(2)(a)(i).
Please note the following:
· If you intend to show funds from a source in India, the Minister (on review, the Tribunal) must be satisfied that the financial institution is acceptable. See for a detailed list. Funds from financial institutions not listed may not be accepted.
· I draw your attention to the requirement to provide evidence that the regular income of any person (including yourself) providing funds to satisfy financial capacity requirements was sufficient to accumulate the level of funding being provided by that person; as well as the requirement to provide evidence of your relationship to this person which demonstrates they are an ‘acceptable individual’.
· The Tribunal will assess you against the applicable Schedule 5A criteria, based upon your enrolment at the time the Tribunal makes its decision, taking into account any changes to your enrolment which have occurred since you lodged your visa application. For example, the amount of funds you must demonstrate to satisfy Schedule 5A financial criteria may have changed, reflecting changes in the length of your course and the amount of course fees outstanding. If you have enrolled in a new course, depending on the type of evidence of funds you provide, you may be required to show a savings history for 6 months prior to the date of your visa application. Furthermore, if your principal course has changed, you may be assessed against a different visa subclass, in which case different Schedule 5A criteria would apply.
4. Evidence that, while you hold the visa, you will have access to the funds demonstrated or declared in accordance with the financial capacity requirements of Schedule 5A for the proposed period of your stay in Australia, as required by cl.572.223(2)(a)(iii). Without limiting the ways in which this requirement may be satisfied, where you have shown evidence of a loan which is secured against a money deposit, the Tribunal specifically invites you to provide the following:
· evidence of the source of funds used to create that money deposit;
· evidence of the regular income of any person providing those funds (for example, official tax records); and
· where the funds were obtained from selling land or a dwelling, evidence of a registered deed of sale, and that money has been received from the purchaser.”
I have attached relevant extracts of the Regulations for your reference. Please note, the Tribunal will make its decision under the Regulations as they stood on the date of your visa application. Evidence before the Tribunal indicates you applied for your visa on 23 September 2011. The attached extracts are provided on the basis that you are enrolled in a course specified for a subclass 572 visa. The criteria you are required to meet may change if your enrolment changes”
At the hearing before the Tribunal on 30 August 2013, the Applicant appeared with the assistance of his migration agent and a Telugu interpreter. The Applicant provided further documents to the Tribunal at the hearing, in addition to those which had been emailed to the Tribunal prior to the hearing, and in support of the visa application.
Tribunal’s decision
The Tribunal found that the relevant subclass of visa was Subclass 572. The Applicant was enrolled in an Advanced Diploma of Management. As the Applicant was the holder of an Indian passport, the Tribunal found that the relevant assessment level was assessment level 4, and the English language proficiency requirements for that assessment level, for Subclass 572, were as set out in Part 4 of Schedule 5A of the Regulations.
The Tribunal found that the International English Language Testing System (‘IELTS’) test the Applicant sought to rely on, which he completed on 3 August 2013, did not meet the requirements of cl.5A404(a) of Schedule 5A of the Regulations, as he only achieved an overall band score of 5.0. The requisite score the Applicant had to achieve to satisfy cl.5A404(a) of Schedule 5A of the Regulations, was an overall band score of 5.5. The Tribunal also found the Applicant had not provided any evidence that he met any of the other alternative methods of demonstrating his English language proficiency for the purposes of cl.5A404 of Schedule 5A of the Regulations. The Tribunal noted in its Decision Record dated 5 September 2013 (date of oral decision 30 August 2013) (‘the Decision Record’) at paragraph 16, that when invited to make a submission, the representative of the Applicant acknowledged that the Applicant did not satisfy the English language proficiency requirement. The Tribunal concluded, on the basis of the evidence before it, that the Applicant did not satisfy the requirements of cl.572.223(2)(a)(i) of Schedule 2 of the Regulations.
At the hearing the Applicant stated that he “wanted to improve” his English, and he sought an extension of time to sit another IELTS test. The Tribunal refused the Applicant’s request for the following reasons:-
a)the Applicant had been on notice since November 2011 that he did not meet the English language proficiency requirement;
b)the Applicant had sat an IELTS test as recently as 3 August 2013, but was unable to achieve the required band score;
c)the Tribunal had “unresolved concerns about the Applicant’s study history in Australia” and therefore his ability to meet the requirements of cl.572.223(2)(a)(ii) of Schedule 2 of the Regulations. The Tribunal raised such concerns with the Applicant at the hearing and invited him to comment. The Applicant’s explanations did not quell the Tribunal’s doubts about his study history. The Tribunal stated in its Decision Record at paragraph 24 that it:-
“…did not wish to falsely raise the applicant’s expectations of a successful outcome by granting an extension of time…”
The grounds, as set out in the Application before this Court, I accept at their highest seek impermissible merits review. The Tribunal had no discretion to take into account any “exceptional circumstances” as claimed by the Applicant, in finding that the Applicant did not satisfy cl.572.223(2)(a)(i) of Schedule 2 of the Regulations. No error is apparent in the approach taken by the Tribunal, and the Tribunal gave fulsome reasons as to its refusal of the Applicant’s request for an adjournment. That, in any event, was a matter for the discretion of the Tribunal member. The Tribunal was under no obligation to delay making its decision until after the Applicant had booked and undertaken a further IELTS test (Rahman v Minister for Immigration and Citizenship [2012] FCA 1312 at paragraph 49). Further, the Tribunal’s exercise of discretion to refuse to grant the Applicant additional time was not unreasonable, as submitted by counsel for the First Respondent, in the sense considered by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18.
As the Applicant has failed to raise an arguable claim for the relief sought, his application will be dismissed pursuant to r.44.12(1)(a) of the Rules, and costs shall follow the event in the sum fixed in accordance with Division 1 of Part 3 of Schedule 1 of the Rules, in the sum of $3,326.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 20 May 2014
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