Wander v Minister for Immigration

[2017] FCCA 3190

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANDER v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3190

Catchwords:
MIGRATION – Application for judicial review – show cause – refusal to grant Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa – failure to provide current confirmation of enrolment – Tribunal unable to be satisfied that applicant had given evidence of adequate arrangements in Australia for health insurance – application for judicial review raises no arguable case – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.476(2)(a)

Migration Regulations 1994 (Cth), reg.1.40A, sch.2 cls.570.232, 571.232, 572.225, 572.231, 572.232, 573.231, 574.231, 575.231
Migration Legislation Amendment (2016 Measures No.1) Regulations 2016 (Cth)

Applicant: GURWINDER KAUR WANDER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 226 of 2017

Judgment of: Judge Jones

Hearing date: 19 October 2017

Date of Last Submission: 19 October 2017

Delivered at: Melbourne

Delivered on: 19 October 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms Stone of DLA Piper Australia

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application for judicial review filed on 3 February 2017 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 226 of 2017

GURWINDER KAUR WANDER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

1. This decision concerns an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 13 January 2017 affirming a decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 13 July 2016 refusing to grant the Applicant a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa (“the visa”). The Tribunal’s decision is at Court Book (“CB”) 69-72. The Minister has applied, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for orders dismissing the application for judicial review filed on 3 February 2017 on the basis that the grounds for relief do not raise any arguable case.

2. The material before the Court is the Court Book, the Applicant’s application for judicial review and supporting affidavit filed on 3 February 2017, and the Minister’s Outline of Submissions filed on 18 September 2017.

3. The Applicant is self-represented at the hearing before this Court, and is assisted by an interpreter in the Punjabi and English languages. At the commencement of the hearing, I indicated to the Applicant that she seemed to have a reasonable ability to speak and understand English. The Applicant agreed. I suggested to the Applicant that a way of approaching the hearing today was therefore for her to speak in English, and to have statements made by the Court or the Minister’s legal representative interpreted when she did not understand what was being said. The Applicant agreed, and was comfortable with this process. However, most of what was said at the hearing was interpreted for the Applicant, including my oral decision.

4. I confirmed with the Applicant that her application was filed on 3 February 2017, and that her grounds of judicial review were set out in the application. Before turning to the Applicant’s grounds for judicial review, I explained to the Applicant the function of the Court at a final hearing and at a show cause hearing.

5. With respect to a final hearing, I explained to the Applicant that the function of the Court was not to decide whether to grant her the visa but, rather, to decide whether the Tribunal’s decision or the Tribunal’s conduct revealed a “serious legal mistake”, or what the lawyers refer to as “jurisdictional error”.

6. I then explained to the Applicant the nature of a show cause hearing, at which the Court is required to decide whether the Applicant’s grounds for judicial review reveal that she has an arguable case. I explained to the Applicant that if I found that she did have an arguable case, the matter would be listed for final hearing. I also explained to the Applicant that if I found that she did not have an arguable case, her application for judicial review would be dismissed and that she may be required to pay the Minister’s legal costs of, and incidental to, the hearing today. I asked the Applicant whether she had any questions about this, and the Applicant said that she did not.

Background

1. The Applicant is a female citizen of India (CB 1). She applied for the visa on 29 March 2016 (CB 1-8). At the time of the Applicant’s application for the visa, the primary criteria for the visa were set out in pt.572 of sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

2. I note that after the date of the Applicant’s application for the visa, the criteria for the visa were repealed. However, the amendments that were produced by the Migration Legislation Amendment (2016 Measures No.1) Regulations 2016 (Cth) only applied to applications from 1 July 2016. The amendments therefore did not apply to the Applicant’s application for the visa.

3. At the time of her application, it was a criterion for the grant of the visa that the Applicant satisfy cls.572.225 and 572.231 of sch.2 to the Regulations. Clause 572.225 of sch.2 to the Regulations required that the Applicant give to the Minister evidence of adequate arrangements for health insurance during the period of the Applicant’s intended stay in Australia. Clause 572.231 of sch.2 to the Regulations required that the Applicant be enrolled in or subject to a current offer of enrolment in a course of study that is a principal course of a type specified under reg.1.40A of the Regulations.

4. By correspondence dated 25 May 2016, the Department of Immigration and Border Protection (“the Department”) requested that the Applicant provide additional information (CB 12-21), including information that the Applicant had Overseas Student Health Cover until the end of her stay in Australia, which the Department calculated to be 26 May 2017 (CB 18). The Applicant did not respond to this request for information. On 13 July 2016, a delegate of the First Respondent (“the Delegate”) refused to grant the Applicant the visa (CB 23), on the basis that the Applicant did not satisfy the health insurance requirements under cl.572.225 of sch.2 to the Regulations (CB 27).

5. On 22 July 2016, the Applicant applied to the Tribunal for a review of the Delegate’s decision and provided a copy of the Delegate’s decision in that application (CB 29-38). On 29 August 2016, the Applicant was sent a letter from the Tribunal by email, inviting the Applicant to provide information that showed the Applicant had adequate arrangements in Australia for health insurance (CB 44-46). The Applicant responded to the Tribunal by email dated 28 September 2016 (CB 47), attaching a letter from Allianz Global Assistance dated

   
   

   28 September 2016, stating that the Applicant had health insurance from 8 March 2016 to 28 September 2017 (CB 48).

6. Additionally, the Tribunal had accessed the Provider Registration and International Student Management System (“PRISMS”) which showed that the Applicant was not enrolled in any course of study at the relevant time. The PRISMS record showed that the Applicant’s Diploma of Business at the Chambers Institute was cancelled on

   
   

   9 August 2016 (CB 49).

7. On 6 December 2016, the Tribunal sent a letter to the Applicant asking the Applicant to provide information in writing showing that she had a current confirmation of enrolment (“COE”), as well as information showing that the Applicant had adequate arrangements in Australia for health insurance during the period of her intended stay in Australia (CB 51-53). The letter requested that information be provided by

   
   

   20 December 2016.

8. The Applicant responded by email dated 15 December 2016, attaching another letter from Allianz Global Assistance dated 29 September 2016 (CB 54-55). This letter again stated that the Applicant had health insurance from 8 March 2016 to 28 September 2017. The Applicant also provided the Tribunal with a COE for her Diploma of Business (CB 57), however, this is the course which the PRISMS record shows was cancelled on 9 August 2016 (CB 49).

9. On 16 December 2016, the Applicant was invited to and did attend a hearing before the Tribunal on 9 January 2017 (CB 60, 63). The invitation contained a request that the Applicant provide a copy of her current COE, as well as evidence of adequate arrangements for health insurance (CB 61). The Applicant did not respond to this request for information.

10. At the Tribunal hearing, the Applicant was invited to comment on the PRISMS record, which stated that her enrolment in the Diploma of Business was cancelled on 9 August 2016 (CB 71 at [12]). The Tribunal explained to the Applicant the relevance of this information and informed the Applicant that she could seek an adjournment of the Tribunal hearing to consider her response (CB 71 at [12]).

11. The Applicant told the Tribunal that she did not require additional time to consider her response (CB 71 at [12]). The Applicant then told the Tribunal that she agreed that her enrolment in the Diploma of Business had been cancelled and that she had stopped studying in August 2016 (CB 71 at [12]).

12. The Applicant did request additional time at the hearing to apply for a new COE (CB 71 at [13]). The Tribunal agreed to defer making a decision until close of business on 11 January 2017, two days after the Tribunal hearing. The Tribunal indicated in its decision record that it only provided a short period of time for the Applicant to provide the new COE because it had already requested this information twice from the Applicant on 6 December 2016 and 16 December 2016 (CB 71 at [13]). No further evidence or correspondence was sent by the Applicant to the Tribunal (CB 71 at [14]).

Tribunal Decision

1. The Tribunal made its decision on 13 January 2017 affirming the Delegate’s decision not to grant the Applicant the visa. Firstly, the Tribunal found that there was no evidence before it that the Applicant was enrolled in or had a current offer of enrolment in any applicable course of study (CB 71 at [15]). As such, the Tribunal found that the Applicant did not meet cls.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of sch.2 to the Regulations (CB 71 at [15]).

2. The Tribunal then went on to consider whether the Applicant met cl.572.225 of sch.2 to the Regulations, which are the requirements in relation to health insurance coverage (CB 71-72 at [16]-[21]). The Tribunal noted that the phrase “adequate arrangements in Australia for health insurance” is not defined in the Migration Act 1958 (Cth) (“the Act”), but had regard to the Department’s Procedures Advice Manual 3 (“PAM3”) in identifying its requirements (CB 71 at [17]).

3. The Tribunal found on the evidence before it that it could not be satisfied of the period of the Applicant’s intended stay in Australia and, consequently, could not be satisfied that the Applicant had given evidence of adequate arrangements in Australia for health insurance during the period of the Applicant’s intended stay in Australia for the purposes of the visa (CB 72 at [21]). Consequently, the Tribunal found that the Applicant did not satisfy cl.572.225 of sch.2 to the Regulations.

Judicial Review

1. The Applicant’s grounds of judicial review as set out in her application are as follows:

   1.  That the member erred in affirming the review application by relying on the evidence DIBP provided to refuse the visa.

   2.  The DIBP Case officer erred in considering the grounds for not to refuse the student visa.

   3.  Despite of more reasons for not to refuse the visa, he made up his own mind to refuse the visa.

   4.  DIBP erred in not considering the findings that I was in the race to find the other alternatives to pay my fee as it can breach my visa condition and they did not provided any extra time even they were fully aware of my conditions.

   5.  AAT concluded that they cannot grant the extension of time as DIBP haven't provided me time for the same matter. They showed sympathy but affirm the DIBP decision without giving extra time and proper reasons for the affirmed decision.

   6.  The DIBP case officer and AAT member failed to consider that each case has its own facts, merits and compelling reasons.

   7.  The member did not considered the compelling reasons that weigh my case for not to refuse my student visa.

   8.  The time provided to me was during the Christmas holidays and I was unable to give the required information on time.

   9.  My visa application raises an arguable case in relation to not refuse the visa.

   10.    That the DIBP Case Officer and AAT member erred in affirming the review and not according substantial justice to the applicants.

2. During the course of the hearing today, I asked the Applicant to explain to the Court why she thought that the Tribunal’s decision was wrong. The Applicant’s submission was that the Tribunal did not give her enough time to provide further information.

3. When I asked the Applicant what that further information was, the Applicant said that it would be a COE in Nursing. The Applicant confirmed that she had not yet applied for a COE in Nursing with an education provider. The Applicant said that this was because she had not yet sat the International English Language Testing System (“IELTS”) test for the Bachelor of Nursing.

4. I raised with the Applicant the fact that the Tribunal had asked the Applicant to provide them with a current COE twice before the hearing. The Applicant agreed that she had not provided a COE in a current course, or a current COE in a course of study. The Applicant said that this was because her father was sick and could not pay the fees. 

Ground 1

1. The Applicant’s first ground of judicial review asserts that the Tribunal erred in affirming the decision under review by relying on the same evidence as the Delegate. This is incorrect. The Tribunal conducted a de novo merits review. 

2. Whilst one of the dispositive issues remained the same (namely, whether the Applicant satisfied cl.572.225 of sch.2 to the Regulations), the Tribunal’s decision was also concerned with cl.572.231 of sch.2 to the Regulations; that is, whether there was any evidence before the Tribunal that the Applicant was enrolled in or had a current offer of enrolment in an applicable course of study. The Tribunal found that there was not. Consequently, Ground 1 of the Applicant’s application for judicial review does not give rise to jurisdictional error.

Grounds 2, 3 and 4

1. Grounds 2, 3 and 4 of the Applicant’s application for judicial review are claims about errors made by the Delegate. The Court has no jurisdiction to review the decision of the Delegate pursuant to s.476(2)(a) of the Act. Consequently, Grounds 2, 3 and 4 do not give rise to jurisdictional error and are not arguable.

Ground 5

1. Ground 5 of the Applicant’s application for judicial review asserts that the Tribunal did not give the Applicant an extension of time to provide the relevant documents. The Applicant says that the Tribunal showed her some sympathy, but claims that the Tribunal affirmed the Delegate’s decision without proper reasons for doing so. I am not satisfied that this ground gives rise to jurisdictional error or that it raises to the standard of an arguable case for two reasons.

2. Firstly, the Tribunal did provide the Applicant with extra time to provide a current COE, which I will consider in further detail below when addressing Ground 8 of the application for judicial review. Secondly, the Tribunal clearly provided proper reasons for its decision (CB 69-72).

Grounds 6 and 7

1. Grounds 6 and 7 of the application for judicial review refer to similar claims. Under Ground 6, the Applicant says that that the Tribunal member failed to consider that each case has its own facts, merits and compelling reasons. The Applicant also says under Ground 7 that the Tribunal did not consider the compelling reasons that favour her case for a grant of the visa. 

2. The Applicant has not indicated to the Court in her oral submissions today what compelling reasons she gave evidence about to the Tribunal, other than the Applicant’s statement that she had not applied before the Tribunal hearing for a COE in a Bachelor of Nursing because her father was sick. In relation to the Applicant’s father’s financial position, the Tribunal records that the Applicant stated that “…her enrolment [in the Diploma of Business] was cancelled because her father was not able to pay the course fees...” (CB 71 at [12]).

3. On the face of the Tribunal’s decision record, it is not apparent to the Court that the Applicant gave the Tribunal evidence that she was unable to apply for a COE in the Bachelor of Nursing before the hearing because her father was sick and could not pay the fees for the course. In those circumstances, I am not satisfied that Grounds 6 or 7 of the application for judicial review raise an arguable case. The Tribunal was required only to consider whether the Applicant satisfied the criteria for the grant of the visa and there is no doubt that the Applicant did not satisfy that criteria.

Ground 8

1. The Applicant addressed Ground 8 of the application for judicial review today in her oral submissions, which is that the time provided to the Applicant by the Tribunal to provide the additional information was not enough due to the Christmas holiday period. In her oral submissions, the Applicant said that she did not have enough time to complete her COE in a Bachelor of Nursing, however, also confirmed to the Court that she did not provide a COE in a Bachelor of Nursing prior to the Tribunal hearing. The Applicant said that she could not do so, because her father could not pay the requisite fees.

2. The Applicant did not respond to the Tribunal’s request for a current COE. In the Applicant’s responses regarding her lapsed enrolment and her cancelled enrolment of the Diploma of Business, the Applicant never indicated to the Tribunal in any way that she could not provide the information regarding a COE because her father was sick and could not pay the fees.

3. After the Tribunal hearing, the Applicant did not convey to the Tribunal by email or any other form of correspondence that the time period to provide the requisite information was insufficient because of the Christmas break. The Applicant did not contact the Tribunal following the hearing to seek further time. The Tribunal was therefore unaware of the difficulties the Applicant now says confronted her in providing a current COE within the time period that was granted to her by the Tribunal to provide that further information.

4. Consequently, I am satisfied that the Tribunal’s exercise of its discretion to provide the Applicant with an additional period of time of two days to provide further information was a reasonable exercise of its discretion. I make this finding for the same reasons provided by the Tribunal for the short period of time granted to the Applicant, which is that the Applicant had already been requested to provide information of a current COE twice prior to the hearing.

5. The Applicant did not provide that information regarding a current COE, nor did the Applicant provide to the Tribunal prior to the hearing any explanation why she did not provide the information. Consequently, I am satisfied that Ground 8 of the application for judicial review does not raise an arguable case.

Ground 9

1. Ground 9 of the Applicant’s application for judicial review asserts that her application raises an arguable case not to refuse the visa. However, I have already dealt with the Applicant’s reasons as to why she said she has an arguable case, which is that the Applicant was not given sufficient time to provide the relevant information of a current COE in a Bachelor of Nursing to the Tribunal.

Ground 10

1. The Applicant’s final ground of review is that the Tribunal erred because the Applicant was not afforded substantial justice. I am satisfied that this ground does not raise an arguable case. The Applicant was invited to attend a hearing of the Tribunal and, further, the Applicant was invited twice to provide the information that was necessary for the Tribunal to be satisfied as to whether the Applicant met the relevant criteria for the grant of the visa, which were cls.527.225 and 572.231 of sch.2 to the Regulations as they applied at the time of the Applicant’s application. The Applicant did not do so in relation to cl.572.231 of sch.2 to the Regulations.

2. The Applicant attended the Tribunal hearing unassisted by an interpreter, however, the Applicant did not request one. The Applicant was also provided with an opportunity to provide evidence and make submissions at the Tribunal hearing. On that basis, I am not satisfied that Ground 10 of the Applicant’s application for judicial review raises an arguable case.

Conclusion

1. Having considered all of the grounds of the Applicant’s application for judicial review, including the oral submissions the Applicant made to the Court in support of those grounds, I find that the Applicant’s grounds of judicial review do not give rise to an arguable case for the relief the Applicant seeks.

2. Accordingly, I will make an order dismissing the Applicant’s application for judicial review filed on 3 February 2017 pursuant to r.44.12(1)(a) of the FCC Rules. I will also make an order that the Applicant pay the costs of the First Respondent in a fixed amount.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 19 December 2017