Villamar v Minister for Immigration

[2014] FCCA 732

FEDERAL CIRCUIT COURT OF AUSTRALIA

VILLAMAR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 732

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

First Applicant: MARC ANTHONY DELA CRUZ VILLAMAR

Second Applicant: JOYCE C VILLAMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2784 of 2013

Judgment of: Judge Driver

Hearing date: 10 April 2014

Delivered at: Sydney

Delivered on: 10 April 2014

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms F Taah

Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2784 of 2013

MARC ANTHONY DELA CRUZ VILLAMAR

First Applicant

JOYCE C VILLAMAR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 11 November 2013, seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 22 October 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants student (temporary) (class TU) visas.  At the time of the Tribunal decision, there were two applicants, Mr Marc Anthony Dela Cruz Villamar, and Mrs Joyce C Villamar.  Both are applicants before the Court. 

2. The Tribunal noted the applicable visa criteria at [6] and [7] of its decision[1].  The Tribunal noted that the question it needed to address was whether Mr Villamar had complied substantially with the conditions that applied to the last of any substantive visas held by him, and any subsequent bridging visa.  The Tribunal referred to authorities explaining how the relevant criterion should be applied, and dealt with the factual information before it.

   [1] Court Book (CB) 108

3. The Tribunal was assisted by an invitation to provide information sent by the Tribunal on 11 June 2013 to Mr Villamar, which sought detailed information.  The Tribunal received a submission from Mr Villamar’s representative on 16 July 2013.  That submission sought to explain gaps in Mr Villamar’s study whilst holding his last student visa. 

4. The Tribunal conducted a hearing on 2 October 2013, which Mr Villamar and his wife attended.  Mr Villamar was questioned by the Tribunal about the chronological history of his study in Australia to the time of the Tribunal hearing.  The Tribunal, in particular, probed gaps in his studies, the first being some 18 months between December 2008 and July 2010, and the second being approximately 22 months between September 2011 and July 2013. 

5. The core of the Tribunal’s reasoning is contained at [26] of its reasons[2]:

   The evidence before the Tribunal indicates that the applicant arrived in Australia on 6 February 2007 as the holder of a Subclass 572 Visa.  The evidence indicates that the applicant commenced his studies in February 2007 in a Diploma of Business which he duly completed in December 2008.  The evidence indicates that since that time the applicant’s study periods had been infrequent.  The applicant enrolled in a Diploma of Community Services in 2009 but his Certificate of Enrolment was cancelled due to non-commencement of studies.  The applicant then enrolled in a Certificate II in Information Technology that he commenced in July 2010 concluding with a Certificate IV in Information Technology which he completed in September 2011.  This evidence indicates that between December 2008 and July 2010 the applicant did not maintain enrolment in registered courses of study.  Further to this the evidence indicates that the applicant despite being told by his migration agent that he could study as the holder of a Bridging A Visa did not engage in any study until July 2013 after his Subclass 572 Visa was refused by the Department of Immigration in September 2011 a period of almost two years.  Despite the applicant’s lack of study, the applicant has been working 20 hours a week and the Tribunal is not satisfied that the evidence before it sufficiently explains the applicant’s failure to study during that period.

   [2] CB 111

6. In consequence of that reasoning, the Tribunal concluded that it could not be satisfied on the evidence before it that Mr Villamar had not deliberately flouted the conditions on his visa, and found that he had not complied substantially with the conditions of his last held substantive visa, a subclass 572 student visa.

7. The show cause application contains only one ground, which is an invitation to the Court to reconsider Mr Villamar’s situation as a genuine and compliant student, as he was apparently enrolled as a student at the time the show cause application was filed. 

8. At a first court date directions hearing on 10 December 2013, I gave the applicants the opportunity to file and serve an amended application and further evidence.  They have not taken up that opportunity. 

9. I have before me as evidence the court book filed on 11 December 2013. 

10. I invited oral submissions today from Mr Villamar, who attended court alone.  He explained his difficulties in relation to the first gap in his enrolment, by reference in particular to a need to return to the Philippines to care for his sick children.  In relation to the second gap, he explained that he did not fully understand the need for him to continue studying whilst holding a bridging visa and awaiting a decision on the grant or refusal of a further student visa. 

11. If the Tribunal’s reasoning was dependent solely on the second gap in Mr Villamar’s studies, at a time when he was not holding a student visa, but was only holding a bridging visa, there might have been a question of law meriting a final hearing.  That question would be the relevance of a failure to study during a period when the visa applicant did not hold a student visa. 

12. I note that the criterion referred to by the Tribunal at [7] of its reasons[3] also brought into play conduct by a visa applicant whilst holding a bridging visa subsequent to the last substantive visa.  However, the Tribunal’s reasons at [28][4] do not refer specifically to the bridging visa, only to the last substantive visa. 

    [3] CB 108

    [4] CB 111

13. Read fairly and as a whole, however, it is plain that Mr Villamar was not able to persuade the Tribunal that he had substantially complied with the conditions on his student visa, bearing in mind that he had been in Australia since 2007, and had only successfully completed one course, which occupied him in the first 12 months of that period.  Subsequently, his studies had been, at best, chequered. 

14. I see no arguable case of jurisdictional error by the Tribunal in this matter. 

15. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Villamar indicated that he may need to discuss terms of payment of the debt created by the costs order, but he did not impose, in principle, the making of an order. 

17. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 April 2014