FEDERAL COURT OF AUSTRALIA

Sohal v Minister for Immigration and Border Protection [2015] FCA 151

THE COURT ORDERS THAT:

1.    The appellants’ appeal be dismissed.

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

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

REASONS FOR JUDGMENT

1    The appellants have appealed the judgment of her Honour Judge Whelan of the Federal Circuit Court of Australia handed down on 10 November 2014. Her Honour dismissed an application for judicial review of a decision made by the Migration Review Tribunal (the Tribunal) given on 7 November 2013. The Tribunal had affirmed a decision of the delegate of the first respondent (the Minister) to refuse to grant the first appellant a Student (Temporary) Class TU subclass 572 visa (the visa).

2    The parties to the appeal before me are the first appellant, his wife (the second appellant) and his son (the third appellant). It is only necessary to deal with the position concerning the first appellant as the other two appellants have not raised any additional issue beyond the consideration of the visa applied for by the first appellant. In terms of the appeal, the Minister was represented before me. The Tribunal filed a submitting appearance. For the reasons that follow, the appeal will be dismissed.

The visa application

3    The first appellant is a citizen of India. On 28 July 2012, the first appellant applied for the visa.

4    On 8 August 2012, the Department of Immigration and Border Protection (the Department) wrote to the first appellant through his migration agent inviting him to provide more information in support of his application for the visa. The Department also invited the first appellant to comment on various adverse information as follows:

Information available to the Department indicates that you did not attend any course of study from 13 June 2011 to 29 July 2012. This is a study gap of more than 12 months, during which time you held a student visa with full study rights. Further, it appears that you were not enrolled in any course of study between 19 August 2011 and 27 July 2012, and therefore you were in breach of condition 8202 on your previous student visa.

You are entitled to comment on this information, and provide further documentation which will be considered in making a decision on your application.

5    The first appellant provided a number of documents in support of the application for the visa. However, on 5 September 2012 the first appellant’s migration agent wrote to the Department advising that the first appellant could not provide certain documents from India.

6    On 12 September 2012, a delegate of the Minister refused the visa application. The delegate found that:

(a)    The first appellant’s educational history as displayed on the Provider Registration and International Students Management System (PRISMS) indicated that he was not enrolled in an appropriate course of study for international students for an 11 month period between 9 August 2011 to 27 July 2012;

(b)    There was insufficient evidence provided at the time of lodgement to satisfy the delegate that the first appellant met the financial requirements of Sch 5A of the Migration Regulations 1994 (Cth) (the Regulations) (as in force at the relevant time), and therefore the first appellant did not meet cl 572.223 of Sch 2;

(c)    The delegate was not satisfied that the first appellant met cl 572.235 of Sch 2 to the Regulations, and specifically condition 8202.

7    The criteria for the grant of the visa were set out in Sch 2 to the Regulations. Clause 572.223 as in force at the relevant time provided as follows:

(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; and

(b)    the applicant meets the requirements of subclause (2).

(2)    An applicant meets the requirements of this subclause if:

(a)    the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

(b)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)    any other relevant matter; and

(c)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

8    Clause 572.235 as in force at the relevant time provided:

If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

9    Condition 8202(2), which applied to the first appellant’s last held visa, also provided:

A holder meets the requirements of this subclause if:

(a)    the holder is enrolled in a registered course; or

…

10    On 3 October 2012, the first appellant applied to the Tribunal for a review of the delegate’s decision.

11    On 10 October 2013, the Tribunal wrote to the first appellant through his migration agent inviting him to appear at a hearing on 7 November 2013. The invitation provided for the first appellant to provide, inter-alia:

4.    An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

5.    Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period ...

12    The first appellant did not take up that invitation and provide further evidence at that time.

13    On 7 November 2013, the first appellant appeared before the Tribunal. He gave evidence and presented arguments. He was represented by his migration agent throughout that process. On that day, the Tribunal gave an oral decision which affirmed the decision under review. A written set of reasons was produced by the Tribunal and published on 19 November 2013.

The Tribunal’s findings

14    One issue before the Tribunal was whether the first appellant had substantially complied with the conditions that applied to his last substantive visa as required by cl 572.235. A further issue was whether the first appellant was a genuine applicant for entry and stay in Australia and satisfied the requirements of cl 572.223. Moreover, the first appellant was also obliged to demonstrate that he met the financial capacity requirements set out in Sch 5A to the Regulations.

15    The Tribunal found that condition 8202 had applied to the first appellant’s last substantive visa, which was a subclass 572 visa. In particular, condition 8202(2) required the first appellant to be enrolled in a registered course whilst he held the visa. The Tribunal considered that condition 8202(2) was a condition to which substantial compliance was sufficient. Further, the Tribunal noted that whether the first appellant had complied substantially with a visa condition was a question of fact to be determined having regard to the circumstances of the particular case. The Tribunal cited Kim v Witton (1995) 59 FCR 258 and Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 in support.

16    At the hearing before the Tribunal, the first appellant conceded that he was not enrolled in an appropriate course of study between 19 August 2011 and 27 July 2012.

17    The first appellant put forward an explanation to the Tribunal as to why he had not been enrolled during that period in terms that:

(a)    he had been suffering from a medical condition after an operation relating to haemorrhoids; and

(b)    he had been in India for three weeks before returning to Australia to rest after an operation and thereafter suffered from a fever and congested lungs which thereafter was diagnosed as involving bronchitis.

18    The Tribunal made the following findings at [19] to [26] of its reasons in relation to this particular aspect:

19.    As was set out in the delegate's reasoning, a copy of which was provided by the applicant to the tribunal, departmental records show that the applicant was not enrolled between 19 August 2011 and 27 July 2012. The applicant does not dispute that to be the case. The applicant was clearly alerted to this in the delegate's decision which was made on 12 September 2012. The tribunal is satisfied of that and finds accordingly.

20.    By letter, dated 10 October 2013, the tribunal wrote to the applicant inviting him to present arguments and give evidence at a hearing arranged for 7 November 2013. In part the hearing invitation specifically invited the applicant to provide "an explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation." The applicant did not submit any written statement to the tribunal.

21.    The applicant claimed at hearing that he underwent an operation related to haemorroids in India in the relevant period. He said that he was in India for three weeks before returning to Australia for rest. The applicant has also provided a photocopy of medical notes from a nursing home and maternity hospital in India (folio 20 of the departmental file). Those notes are largely indecipherable and do not satisfy the Tribunal that the applicant was incapacitated such that he was unable to maintain his enrolment in a registered course between 19 August 2011 and 27 July 2012. Nor do they satisfy the tribunal that the applicant underwent an operation as he claimed. As was put to the applicant at hearing the tribunal regularly receives detailed medical certificates and reports. The applicant has had significant time to obtain further detailed reports. The tribunal does not accept that doctors would refuse to release any reports or certificates to the applicant without a request from the tribunal. The tribunal accords no weight to the certificate.

22.    On the departmental file (folio 24) is a medical certificate dated 30 August 2012 in respect of the applicant's visit to a doctor on 25 February 2012 (in the Philippines) at which he was diagnosed as having an acute upper respiratory tract infection with acute tonsillo pharyngitis. The certificate does not set out that the applicant was incapacitated for any particular period of time or that he was in fact hospitalised. The tribunal accords little weight to that certificate.

23.    The applicant claims that he also attended doctors in Australia who refused to provide him with medical certificates unless requested by the tribunal. He has not provided particular details of which doctors he consulted apart from referring to a doctor in St Albans. He has not provided evidence that he was prescribed medication apart from his own oral assertions. The delegate, in reaching a decision in September 2012, gave little weight to the medical evidence provided by the applicant. The applicant accordingly has been on notice for well over a year concerning the adequacy of medical documents he has provided. The tribunal rejects the applicant's claims that doctors in Australia refused to provide medical reports or to release information at the applicant's request.

24.    The tribunal is not satisfied that the applicant was prevented from maintaining enrolment in a registered course and/or attending classes due to a medical condition or conditions between 19 August 2011 and 27 July 2012.

25.    As was noted by the delegate in her decision record, the non-enrolment period ceased just one day before the current student visa application was lodged on 28 July 2012. The applicant had been granted the subclass 572 visa on 19 July 2011 which was valid until 28 July 2012. Accordingly the tribunal finds that he failed to maintain enrolment and/or attend classes for almost the entirety of the visa period. The tribunal considers this to be of particular significance given that he had been granted a student visa so that he could study. The tribunal rejects the applicant's claim that he was prevented from maintaining enrolment or studying due to a medical condition(s). Without any other accepted explanation for his failure to maintain enrolment the tribunal considers that the applicant deliberately flouted the visa condition and was aware that he did so. At hearing the applicant lodged confirmations of enrolment that were created on 1 November 2013 in respect of courses to commence on 11 November 2013. He told the tribunal that prior to that he had not been enrolled for a long time but could not remember how long it was. The applicant also told the tribunal at hearing that he arrived in Australia in February 2009. In response to further questions he stated that he has achieved only a Certificate III in Hospitality and a Diploma of Hospitality. That is a poor academic record in 4 ½ years. In the Tribunal's view that circumstance indicates that the applicant is not a sincere student and does not genuinely intend to pursue studies in Australia.

26.    For these reasons, the tribunal finds that the applicant has not complied substantially with condition 8202. As such, the applicant does not satisfy c1.572.235.

19    The Tribunal then proceeded to deal with the other two issues raised at [27]-[28] in the following terms:

27.    The tribunal further finds that the applicant is not a genuine applicant for entry and temporary stay in Australia as a student on the basis of the matters discussed above. He has a poor academic record and has failed to maintain enrolment for a significant period. As such, the applicant does not satisfy cl.572.223.

28.    The tribunals further notes that the applicant has not submitted any financial documentation whatsoever despite the invitation to do so set out in this hearing letter of 10 October 2013. The need to provide adequate financial documentation was also clearly stated in the delegate's decision, a copy of which was provided by the applicant to the Tribunal. At hearing the applicant indicated that his family was unable to obtain documents because his family were in the Philippines and the financial documents India. He provided no evidence of efforts he has made to obtain relevant documentation or any clear indication that such documents could in fact be obtained. The tribunal finds that the applicant does not meet the financial capacity requirements set out in Schedule 5A to the regulations.

20    In summary, the Tribunal made the following findings:

(a)    The Tribunal was not satisfied that the first appellant was prevented from maintaining enrolment in a registered course or attending classes due to a medical condition(s) between 19 August 2011 and 27 July 2012.

(b)    The Tribunal rejected a number of the first appellant’s claims that doctors in Australia could not provide medical reports or release information to the first appellant. The Tribunal placed little weight on medical evidence that had been submitted by the first appellant.

(c)    The Tribunal did not accept the explanation put forward by the first appellant, and found that the first appellant had deliberately flouted the visa condition.

(d)    Moreover, the Tribunal considered that the first appellant’s completion of only one hospitality course in four and half years in Australia demonstrated a poor academic record, and indicated that the first appellant did not genuinely intend to pursue studies in Australia.

(e)    The first appellant was found by the Tribunal not to have complied substantially with condition 8202 and accordingly did not satisfy cl 572.235.

(f)    The Tribunal further found that the first appellant was not a genuine applicant for entry and temporary stay in Australia on the basis that he had a poor academic record and that he had failed to obtain enrolment for a significant period. Accordingly, he did not satisfy cl 572.223.

(g)    The Tribunal also found that the first appellant did not meet the financial capacity requirements set out in Sch 5A to the Regulations.

Federal Circuit Court proceedings

21    On 4 December 2013, the appellants filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court.

22    The grounds of the application were stated to be as follows:

1.    S.477, Judicial review can be lodged within 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.

23    Before her Honour was an affidavit of the first appellant of 4 December 2013, which attached a letter elaborating on his grounds. He asserted that:

(a)    he had not been given a chance to give his side of the story;

(b)    he had been denied procedural fairness; and

(c)    his non-compliance with condition 8202 had “been made without my control and had exceptional circumstances beyond”.

24    Her Honour at [22] to [27] of her reasons delivered on 10 November 2014 held the following:

22.    Ground one, as it is set out in the application, is simply a statement to the effect that an application for review of the Tribunal’s decision may be made. That is correct in itself but it is not a ground for granting the relief sought by the Applicant. Ground two states that the Applicant is unhappy with the decision. As I have stated before, an application for judicial review is not a re-hearing of the Applicant’s case. The Court’s powers extend only to determining if the Tribunal made a jurisdictional error and do not – except in very limited circumstances – involve a reconsideration of the findings of fact made by the Tribunal.

    …

24.    Ground three appears again to seek a further hearing of the original application so that the Applicant can produce new material. The Applicant, however, has not established any basis upon which the Court could give consideration to evidence that was not before the Tribunal and, indeed, no such evidence has been produced.

25.    The Applicant claims that he was not given sufficient time by the Tribunal to explore the issues. The Applicant should have been well aware from the decision of the delegate on 12 September 2012 what the issues were. The same issues were the ones before the Tribunal. It was over 12 months from when the Applicant lodged his application until he was contacted by the Tribunal and asked to provide an explanation for the gaps in his enrolment and produce evidence to support this. The Applicant had over a year to obtain documents from India or elsewhere.

26.    It was four weeks from when the Tribunal wrote to the Applicant advising him that he would need to provide an explanation and when he appeared before the Tribunal. The Tribunal complied with the requirements of the Act with respect to procedural fairness in that:

•    The Applicant was notified of what the issues were;

•    He was invited to provide evidence; and

•    He was invited to attend a hearing and argue his case.

27.    In my view, the Applicant merely wishes to have another go at arguing the merits of his claim. There is not any basis, however, on which the Court could find that the Tribunal made any jurisdictional error in the conduct of his case and nor has the Applicant suggested any such error.

Present appeal

25    The appellants have filed a notice of appeal where the grounds are expressed in terms which do not articulate any precise error made by her Honour or any jurisdictional error made by the Tribunal. They are expressed in the following terms:

The applicant visa 572 subclass was REFUSED by DIBP on the basis of unsatisfactory under the Migration Act 1958; It has been long time applicant is waiting for visa grant to complete applicant education in Australia.

One on other applicant is having situation where exceptional circumstances beyond their control to complete the studies. However, Department has sent a letter to applicant regarding Refusal of visa through the migration agent; according to that letter applicant has lodged the review at Migration review Tribunal. Even applicant is intent to do further studies in Australia. Here, there is no mistake has been found from Immigration side or applicant side, it was miscommunication. But problem would have been solved in Migration review Tribunal.

Therefore, applicant came to federal circuit court for legitimate decision but honourable judge WHELAN has been misguided by solicitors of DIBP, federal circuit court application under the judicial Review has been made on 4TH December 2013, he is not known any information that Federal circuit court has been requesting the further submissions to be submitted to the court.

In the Federal Circuit court decision showing that Registrar made orders to submit applicant file and amended application including any additional grounds of review with complete particulars of each ground, applicant has not known any of these information. However, applicant has been able to attend the hearing with oral submissions and some evidence of his studies.

The applicant has not had any control of his situations which became very bad in Australia to provide reasons at tribunal. According to letter received by mail applicant has lodged the review application in time frame. 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 Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at Migration review tribunal 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 court has court hasn't even looked at applicant claims as there was big barrier "Judicial review has been made which has not been proved by applicant to make it Valid application", but he has exceptional circumstance beyond his control.

26    The first appellant has also filed an affidavit sworn on 20 November 2014 which repeats each of the grounds stated in his notice of appeal and also seeks to put forward fresh evidence, including bank statements and utility bills. The affidavit also annexes a copy of the marriage certificate between the first appellant and the second appellant.

27    The first appellant has noted in his grounds of appeal that:

The Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at the Migration review tribunal if he is given chance by Federal court or DIBP.

28    First, in relation to the application to adduce fresh evidence, there are a number of difficulties. The first appellant has not advanced a sufficient reason as to why that material was not put at least to the Federal Circuit Court. Further, even if it had been put before her Honour, it would not have disclosed that the Tribunal had made a jurisdictional error that her Honour ought to have identified.

29    The copies of the passports add nothing to the present issues. Likewise the copy of the marriage certificate. The gas account dated 18 July 2014 and the City West Water account dated 18 September 2014 likewise do not add anything. Finally, there are some Westpac bank statements from mid-2014 that do not, even now, place a different complexion on the first appellant’s financial circumstances than that which applied before the Tribunal. They would not have established the requirements of cl 572.223(2)(c) and Sch 5A.

30    The application to adduce such further evidence is refused.

31    Second, the grounds of appeal really invite me to engage in a rehearing of the matter. That was also the approach that the first appellant sought to engage in before her Honour. Such an approach was impermissible before her Honour and impermissible before me.

32    Ultimately, the notice of appeal contains little more than a recitation of the difficulties experienced by the first appellant and assertions as to his entitlement to various orders. But such assertions neither establish a jurisdictional error on the part of the Tribunal nor an error made by her Honour.

33    Before me this morning, the first appellant raised the issue of a denial of procedural fairness in not being given the opportunity to obtain his mother’s banking records from India. But there are a number of difficulties. First, it was well apparent since the delegate’s decision that such material was relevant and necessary for him to produce. Yet before the Tribunal no such material was produced. All that was before the Tribunal were the out-of-date financial records from 2008 that had been before the delegate. Second, no error is pointed to as to the manner in which the Tribunal dealt with this matter at [17], [18] and [28] of its reasons. Third, even before the Federal Circuit Court or indeed before me, no such material has been produced, with leave sought to adduce the same. Fourth, in any event, the first appellant’s failure to satisfy cl 572.223(2)(c) and Sch 5A is only one of the three grounds that the Tribunal found in essence against the first appellant. Even if such material was available, it would not have dealt with the other two grounds that justified refusal of the visa in any event.

34    As to the second basis for the refusal of the visa, which dealt with the first appellant’s non-compliance with the previous visa conditions, nothing that was said this morning impugned the Tribunal’s reasons. The first appellant’s excuse proffered before me was the same that was advanced before and rejected by the Tribunal. No error was demonstrated in the Tribunal’s approach.

35    As to the third basis for the refusal of the visa found by the Tribunal (see [16] and [27] of its reasons), which was that the first appellant was “not a genuine applicant for entry and temporary stay in Australia as a student”, the first appellant advanced no separate argument before me this morning. No error has been established.

36    Generally, the theme permeating the first appellant’s position as to why he had not complied with the previous visa conditions or produced the relevant financial evidence is expressed in [9] of his affidavit in his statement that “…I was having exceptional circumstances beyond my control… on the basis of lack of knowledge, financial hardship and health issues…”. But the Tribunal considered these matters, likewise the Federal Circuit Court. The appellants have not demonstrated any jurisdictional error in the Tribunal’s decision or any error made by her Honour. The appeal will be dismissed.

Associate:

Dated: 3 March 2015