VUNYALE v Minister for Immigration
[2016] FCCA 1761
•15 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VUNYALE v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1761 |
| Catchwords: MIGRATION – Failure to satisfy requirements of a visa – merits review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476, 499(2A) Migration Regulations 1994(Cth), cl.572.223(1)(a) of Sch.2 |
| Cases cited: NAAH v Minister for Immigration [2002] FCAFC 354 |
| Applicant: | ROHIT VUNYALE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1192 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 12 July 2016 |
| Date of Last Submission: | 12 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the Respondents: | Ms Helsdon |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Second Respondent’s name be amended to ‘Administrative Appeals Tribunal’.
The applicant’s application filed 27 May 2015 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG1192 of 2015
| ROHIT VUNYALE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the
Migration Review Tribunal (as it then was) (“the Tribunal”) dated
11 May 2015, in which the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Student (Temporary)
(Class TU) Visa (“the Visa”) under s.65 of the Migration Act 1958 (“The Act”).
This proceeding is brought pursuant to s.476(1) of the Act and in order to obtain relief from the Court the applicant must show jurisdictional error in the Tribunal’s decision.
Background
The submissions of the respondent helpfully set out the applicant's claims. The applicant is a citizen of India and on 10 October 2013
he applied to the Department of Immigration and Citizenship (as it then was) (“the Department”) for the Visa.
On 14 October and 12 November 2013, the Department wrote to the applicant requesting further information and amongst other things,
a statement and evidence of the applicant's activity during a 167 day gap in his study.
On 11 December 2013, the applicant provided a number of documents to the Department including a statement explaining his pattern of study and the gap in his study. The applicant alleged in that material that he had some issues with the management of the college.
Delegate’s decision
On 21 October 2014, the delegate refused to grant the Visa on the grounds that the applicant did not satisfy the requirements of cl.572.223(1)(a) of Sch.2 of the Migration Regulations 1994
(“the Regulations”) which states:
(1) The Minister is satisfied that the Applicant is a genuine Applicant for entry and stay as a student because:
(a) The Minister is satisfied that the Applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) The Applicant’s circumstances; and
(ii) The Applicant’s immigration history; and
(iii) If the Applicant is a minor – the intentions of a parent, legal guardian or spouse of the Applicant; and
(iv)Any other relevant matter.
The delegate was required to have regard to the relevant Ministerial Direction given in relation to that clause (Direction No.53).
The delegate also had regard to information contained in Provider Registration and International Student Management System (PRISMS) which sets out the applicant's enrolment history. The delegate found that:
“PRISMS indicated that you have only completed a Certificate III in Printing and Graphic Arts (Graphic Prepress), Diploma of Business and Diploma of Management since arriving in Australia on 15 April 2009. PRISMS also indicate that you did not study between 4 September 2012 to 17 February 2013, a total of almost 5 months and that your current enrolment in Advanced Diploma of Management is unrelated to your previous studies in printing and graphic arts. PRISMS also indicate that you were reported for unsatisfactory course progress on 1 October 2013 and your enrolment for Advanced Diploma of Management was cancelled on this day by your education provider St Peter Institute.”
The delegate determined that the applicant had not provided an acceptable explanation for the gap in enrolment and noted that the applicant had been in Australia since 2009 and did not have a satisfactory course completion record for a student whose primary purpose was to study and progress academically. The delegate determined that the applicant had not completed any courses above the diploma level and had maintained enrolment in short and inexpensive courses which indicated that the applicant was using the student Visa program to circumvent permanent migration programs and maintain residency in Australia. As a result, the delegate was not satisfied that the applicant was a genuine applicant for entry and study as a student and so found that he did not meet cl.572.223 of Sch.2 of the Regulations.
Tribunal's proceedings
On 7 November 2014, the applicant applied to the Tribunal for a review of the delegate's decision. The applicant was provided with an invitation to appear before the Tribunal dated 15 April 2015. The invitation to appear set out to the material that the applicant could provide including:
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.
3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
The applicant was on notice that the Tribunal would assess whether he intended genuinely to stay in Australia temporarily as required by cl.572.223(1)(a) of the Regulations.
On 4 May 2015, the applicant appeared before the Tribunal assisted by his migration agent.
In the Tribunal's reasons for decision it referred to:
a)the grounds of the application;
b)the applicable legislative provisions and the terms of the direction.
The Tribunal also set out at length the submissions and statements of the applicant that were made in support of his application.
Having considered those matters, the Tribunal considered the applicant's study history both in India and Australia. The Tribunal noted that the delegate had been concerned with the applicant’s enrolment in short inexpensive courses which were completed at a vocational level and that he had not completed any courses, at the time of the decision, above the diploma level. At paragraphs 14 and 15 of its decision, The Tribunal stated that, given the concerns of the delegate, it had raised the issue of his patterns of enrolment directly with the applicant and considered his response.
At [21] the Tribunal raised with the applicant his application for a 457 Visa. The applicant was put on notice at the hearing that the Tribunal expressed “significant concern that the applicant has entered into this area of study simply using the study to extend his time in Australia.” The Tribunal noted that the applicant had made no reference to any plans to establish a restaurant or go into that industry when he had applied for his student Visa, expressing his interest in studying and doing management courses, “to escalate my skill to hold better career opportunities.” The Tribunal noted:
The applicant had also stated that he was seeking to develop his skills in the IT area, that he was seeking enrolment in a Masters course at the time. This was completely contradictory to his more recent statement to the Tribunal that “it is not worth doing a Masters unless I have sufficient experience and my career requires Master’s program."
It is apparent that the member of the Tribunal had specific regard to the requirements specified in Direction 53 and specifically averted to those matters.
Proceedings in the Federal Circuit Court
The applicant filed an application for judicial review in this court on 27 May 2015. On 30 September 2015 Registrar Allaway made orders which required the applicant to file and serve written submissions in support of his application 14 days before the hearing. The applicant has not filed and served written submissions. The grounds of review expressed disagreement with the decision of the Tribunal in particular the Tribunal's factual findings in relation to the nature of the courses he was undertaking.
The applicant seeks review of the merits of the Tribunal’s decision and the court does not have jurisdiction to review that decision pursuant to s.476(2) of the Act as it is a primary decision.
The applicant's grounds of review do not reveal any basis for alleging jurisdictional error nor is it apparent that the decision otherwise affected by jurisdictional error. The application amounts to an impermissible request for a merits review of the Tribunal's decision.[1]
[1]NAAH v Minister for Immigration [2002] FCAFC 354
The decision of the Tribunal reveals that it has had regard to the criterion for the grant of the Visa and to the specific matters referred to in Direction No.53. It is also apparent the Tribunal has complied with its mandatory obligation in s.499(2A) of the Act.
The Tribunal has clearly afforded the applicant procedural fairness and has done so by giving the applicant a plain opportunity to respond to matters that were raised before it or which concerned it in relation to the applicant's application.
In these circumstances, the application should be dismissed and the applicant pay the respondent's costs fixed in the sum of $5800.00.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 15 July 2016
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