FEDERAL COURT OF AUSTRALIA

Khaja v Minister for Immigration and Border Protection [2014] FCA 890

THE COURT ORDERS THAT:

1.     The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

SUMMARY

1        This is an appeal from a decision of the Federal Circuit Court made on 26 March 2014. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Migration Review Tribunal, which had been made on 24 May 2013.

2        For the reasons I set out below the appellant has not demonstrated that the judgment of the Federal Circuit Court is affected by any error. The appeal must be dismissed.

BACKGROUND

3        On 24 May 2013 the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection which was made on 10 August 2011, and which refused to grant a Student (Temporary) (Class TU) visa to the appellant. The appellant was represented by a migration agent for the purposes of the review application before the Tribunal although his migration agent did not attend the hearing before the Tribunal with him.

4        The appellant was unrepresented before the Federal Circuit Court and on this appeal. In his application for review to the Federal Circuit Court he indicated he did not require an interpreter for the purposes of his review application in that Court. He did not indicate he required the assistance of an interpreter on this appeal and it was apparent at the hearing of the appeal that he could comfortably conduct the appeal on his own behalf in English.

5        The appellant is an Indian national who, on 2 June 2011 and while in Australia, applied to the Department of Immigration and Border Protection for a Student Temporary (Class TU) visa. He had previously held a student visa. Relevantly, to meet the requirements for a grant of a further student visa the appellant needed to satisfy the Minister he was a “genuine applicant for entry and stay as a student” in accordance with the criteria set out in cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations), together with other criteria concerning substantial compliance with conditions on his last visa, enrolment in a registered course and if relevant, certification of satisfactory progress in a registered course.

6        Correspondence ensued between the appellant and the Department with respect to his application. On 4 July 2011, the Department wrote to the appellant requesting certain documents and inviting him to respond to adverse information that he had a ‘study gap’ between 6 April 2010 and 7 June 2011. The appellant was granted an extension to provide that information and on 19 July 2011 provided a response through his migration agent. On 10 August 2011, the Minister’s delegate found that the appellant had “failed to provide an acceptable response to the adverse information as to why he has a study gap”, that he therefore was not a genuine applicant for entry and stay as a student pursuant to cl 572.223, and refused his visa application.

7        On 6 September 2011, the appellant applied for review to the Tribunal. For reasons which remain unexplained on the evidence, a long period of time passed in which the tribunal appears to have done nothing on the appellant’s review. On 1 May 2013 the appellant was sent an invitation to appear before the Tribunal, through his migration agent. In that invitation, he was invited to provide, by no later than 17 May 2013, amongst other things:

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.

8        On 14 May 2013, the appellant returned his response to the hearing invitation. On the same day, he wrote to the Tribunal to advise that he would no longer be represented by a migration agent.

THE TRIBUNAL’S DECISION

9        The appellant attended a hearing at the Tribunal on 24 May 2013. In his application he had requested that an Urdu interpreter be present but at the hearing he elected to give his evidence in English. The Tribunal’s decision records that, during the course of the hearing, the appellant gave evidence that he had no current certificate of enrolment. The Tribunal’s reasons note the appellant acknowledged that without such a certificate his application for review could not succeed.

10        The Tribunal’s reasons also record the appellant’s explanation for not having a current certificate of enrolment as being “That he was thinking his review application would be refused and he would be asked to leave Australia. That was the main reason because this has been on his mind all year.”

11        The Tribunal’s reasons record that the appellant gave evidence that he had not been enrolled in a registered course since June 2011. The Tribunal went on to find:

…

The applicant has applied for a Student (Temporary) (Class TU) visa for the purpose of study in Australia. There is no evidence before the Tribunal that the applicant is currently enrolled in or the subject of a current offer of enrolment in any course of study. The Tribunal is therefore not satisfied that the applicant is enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574 or 575. On that basis, the Tribunal finds that the applicant does not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations.

…

As the Tribunal has found the applicant does not meet an essential requirement of Schedule 2 for visa subclasses 570, 571, 572, 573, 574 and 575, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for the remaining Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed.

12        The Tribunal gave its reasons on the review orally at the hearing. A written statement of the Tribunal’s decision and reasons, dated 5 June 2013, was provided to the appellant on 6 June 2013.

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

13        On 20 June 2013, the appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court. The grounds of the application were as follows:

1.    Decision has been made by Tribunal can be challenged at Federal court

2.    Applying for Judicial review application in 35 days Time frame

3.    Section 476. My Tribunal decision comes under Jurisdiction of the Federal Circuit Court

14        In support of his application, the appellant provided a “Cover letter” to the Federal Circuit Court, dated 18 June 2013. In that letter he set out difficulties he had with the college at which he had last studied. He claims that he had not received any letters from the Tribunal about his hearing dates, and that the Tribunal’s “sudden decision” was not made in a “legitimate way”. He stated that he was working as a cook at a restaurant in Melbourne, and that he was undertaking Certificates III and IV in Hospitality (Commercial Cookery).

15        On 26 March 2014 the Federal Circuit Court heard and dismissed the appellant’s application for review: Raheemuddin v Minister for Immigration and Border Protection [2014] FCCA 922. The learned primary judge found (at [15]-[18]):

None of these grounds show a basis for overturning the Migration Review Tribunal decision. The applicant made submissions, on the assumption it seems to me, that I had some form of general discretion to allow him to have another hearing before the Tribunal or another opportunity to present material. Under the legislative scheme government has determined that the courts do not have any general discretion in migration matters. My powers with respect to migration matters are limited to strict judicial review of decisions of the Tribunal. On the question of strict judicial review the applicant has not set out any grounds that would form the basis for a decision in his favour.

The Counsel for the Minister quite properly identified some common grounds that are raised and addressed them in her written submissions. She addressed the possibility that the argument may have been that there was a failure to take account of relevant considerations but notes in her written submissions, as I have noted above in this judgment, that the Tribunal did not have a discretion in circumstances where there was no current enrolment or offer of enrolment given the way in which the Regulations are structured.

Counsel also addressed the possibility of a failure to afford procedural fairness on the basis that the applicant contends that he did not receive the letter from the Tribunal informing him either of the hearing date or perhaps the requirements. The reality is that the applicant did in fact appear before the Tribunal to give evidence and present arguments. He acknowledged that he was not enrolled nor had an offer of enrolment. There was nothing to indicate that he sought an adjournment. In these circumstances it seems to me that he was clearly on notice of the difficulties that he confronted and that there has not been a breach of the Rules relating to procedural fairness.

In the circumstances I therefore have no choice but to dismiss the current application.

THE APPELLANT’S NOTICE OF APPEAL

16        On 16 April 2014, the appellant filed with this Court a notice of appeal from the decision of the Federal Circuit Court. The grounds of appeal are expressed in the following way:

1.    The applicant visa 572 TU was refused by delegate on the basis of student visa criterion under the Migration Act 1958; Applicant, RAHEEMUDDIN KHAJA exceptional circumstances beyond his control. Mainly Delegate has claimed in the Decision Record that adequate evidence has not been provided with application. Then after delegates’ decision has been taken to Migration Review Tribunal for further review. Tribunal has not put enough time to discuss in this regard. At last I have come to Federal circuit court for judicial review. Here, My motto at Migration review tribunal and Federal circuit court is “Finishing my Diploma of hospitality Management as I want to become cook” these documents and evidence have been provided at procedural hearings stage. Applicants father expired in November 2013, before he was ill, family circumstances mad him to stop studies during his father illness. Now his mother is ready support him as whole family is relying in applicant as he become cook in India and looks after family. The applicant wasn’t convicted directly by submitting his own documents such certificates or his identities to Department of Immigration and Border Protection to be non-genuine student in Australia. These arguments have not been raised at hearing and I did not even have chance to explain this situations to honourable judge. My education almost all done, once I finish the education I will return to India. New argument came to light which demonstrates the unsatisfactory evidence hasn’t been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?

2.    The High court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide relevant documents if he is given chance by federal Court or DIBP (Department of Immigration and Border Protection)

Under the federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal circuit court has court hasn’t even looked at applicant claims as there was big barrier “Judicial review has been made with claims haven’t not been proved by applicant”, but he has exceptional circumstance beyond his control.

17        Filed with his notice of appeal was an affidavit of the appellant, sworn 16 April 2014, in which he sets out his “claims and submissions” on his appeal:

Even I have exceptional circumstances which have been developed since I came to Australia, as I would have job opportunities in my home country made me to enrol the course and gradually apply for the student visa application offshore, method was paper base, lodged by at Victorian student centre.

According to the delegates decision that “I am not having valid reasons or Satisfactory previous study history to get the student visa to lodge the student visa application with having bad progress in Australia” make me upset and led to give up education in middle of the tribunal matter, this was clearly explained at tribunal hearing. I do really not understand and even tribunal member is not giving me right explanation regarding the law. This is the reason I came to federal circuit court for judicial review.

Even Federal Circuit court has not listed my explanation and other lawyers from Immigration Department arguing that I am not a genuine student, I have got a question here even not getting a chance to prove that I am genuine student How it is possible to prove. This is the reason I am requesting the Judge to give an opportunity to finish my studies in Australia. My studies almost all done, I can submit all documents in one week once I have received by Education provider.

Jurisdiction error

Above claims and below references and relevant law made me believe that my decision has not been taken legitimately, it has judicial error. This is the reason I am coming to Federal court for natural justice.

18        The appellant then includes in his affidavit some “references”, which include extracts from the Migration Regulations of cl 5A401 of Sch 5A relating to English language proficiency, cl 5A402 of Sch 5A relating to financial capacity, and cl 5A403 of Sch 5A, which stipulates “other requirements” in relation to evidence necessary to be provided by an applicant for the grant of a Subclass 572 visa. There is also an extract from a legislative instrument made under cl 1222 to Sch 1 of the Migration Regulations, which specifies classes of persons for the purposes of that clause.

19        At the hearing of the appeal before me, the appellant explained his reasons for contending that the decision of the Federal Circuit Court should be overturned in essentially the same terms as he had before the Federal Circuit Court.

20        He accepted that at the time of the Tribunal hearing and review, he was not enrolled in a registered course. He told the Court he had “made some mistakes” in his life at that time but now he was enrolled in a hospitality course and had nearly completed it. He described having financial difficulties after his father’s death. He told the Court he liked Australia, that he wanted to remain here and finish his course before returning to India.

THE MINISTER’S SUBMISSIONS

21        The Minister contends that the appellant has not identified any legal or factual errors made by the Tribunal which the Federal Circuit Court failed properly to consider. The Minister submits the Tribunal could not be satisfied the appellant had met the criteria for any subclass of visa, and the Federal Circuit Court judge was correct to dismiss the appellant’s application for review. Further, the Minister submits that the Federal Circuit Court was correct to find there had been no breach of the Tribunal’s obligations of procedural fairness to the appellant. The Minister’s representatives submitted on the appeal that the appellant had, again, sought to invoke some kind of general discretion in the Court to allow him to stay in Australia. The Minister’s representative submitted that, as the Federal Circuit Court had found, no such discretion exists. I accept that submission.

CONSIDERATION

22        The issue on review before the Tribunal was whether the appellant had a current certificate of enrolment, as required by cl 572.222 of Sch 5A to the Regulations. The Tribunal gave the appellant notice of that issue prior to the hearing in the hearing invitation letter. The appellant’s answers to the Tribunal at the review hearing, as reflected in the Tribunal’s reasons, disclosed the appellant understood the need to have such a certificate. The evidence also discloses that the appellant freely conceded he had no such certificate. He gave an explanation why this was so, which was connected with him being demoralised about his prospects of remaining in Australia on a student visa. That evidence reveals that he made a choice not to enrol in a registered course. The evidence shows that, at the time of the delegate’s decision, the appellant had a current certificate of enrolment in a registered hospitality course. The evidence shows that course was due to start in June 2011 and run until May 2013. The enrolment was cancelled on 12 August 2011 on the basis that the appellant did not come for enrolment. The certificate also states “student notifies cessation of studies”. Therefore, on review by the Tribunal, the factual basis in relation to the appellant’s enrolment had changed from the circumstances before the delegate. However honest or understandable the appellant’s explanation was for choosing not to enrol in a registered course at that time, the explanation was not legally relevant to the Tribunal, nor on judicial review. What matters is the fact of the absence of a current certificate of enrolment at the time of the Tribunal’s decision. The consequence is that one of the required statutory criteria for the grant of a visa was not and could not be met at the time of the Tribunal’s decision.

23        The Tribunal recognised this and determined the review principally on the basis of the absence of any such certificate. There were several opportunities given to the appellant to produce such a certificate, but on his own evidence he could not do so because he had consciously chosen to stop studying.

24        In the circumstances there is no error in the approach taken by the Federal Circuit Court. The Federal Circuit Court judge was correct to identify and rely on the appellant’s own concession that he was not enrolled nor had an offer of enrolment at the time of the Tribunal hearing. Nor can it be said there was any jurisdictional error on the part of the Tribunal. Indeed, the Tribunal’s statutory task required it to be satisfied that the appellant met, at the time of the Tribunal’s decision, each of the criteria for the visa for which he was applying, including cl 572.222.

25        The appeal should be dismissed. There is nothing in the evidence to suggest a basis for anything other than the usual order as to costs.

Associate:

Dated:    21 August 2014