Federal Court Dismisses Appeal on Visa Refusal Decision

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[NAME] v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 880 Citation: [NAME] v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 880

Appeal from: [NAME] v Minister for Immigration & Anor [2013] [NAME] 204

Parties: [APPELLANT] v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

File number(s): NSD 934 of 2013

Judge(s): [NAME] J

Date of judgment: 3 September 2013

Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth)

Cases cited: [NAME] v Minister for Immigration & Anor [2013] [NAME] 204

Date of hearing: 15 August 2013

Date of last submissions: 7 August 2013

Place: [APPELLANT]: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 25

Solicitor for the Appellant: [redacted]

Solicitor for the [APPELLANT]: [NAME], Australian Government Solicitor

Solicitor for [RESPONDENT] [APPELLANT]: [[APPELLANT]] [APPELLANT] filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 934 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: [APPELLANT]

Appellant

AND: [APPELLANT] FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

[APPELLANT] TRIBUNAL

[APPELLANT] OF ORDER: 3 SEPTEMBER 2013 [APPELLANT]

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 934 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

[APPELLANT]

Appellant

[APPELLANT] TRIBUNAL

[RESPONDENT] [APPELLANT]

JUDGE: [NAME] J DATE: 3 SEPTEMBER 2013 PLACE: [APPELLANT] FOR

JUDGMENT 1 This is an appeal against a judgment of the Federal Circuit Court of Australia ("the [NAME]") on an application for judicial review of a decision of the Migration Review Tribunal ("[NAME]") established under the Migration Act 1958 (Cth) ("the Act"). 2 The appellant arrived in Australia on a [NAME] visa on 18 March 2007. He completed a Diploma of Accounting in April 2008. He then enrolled in a Certificate III course in Hospitality (Commercial Cookery), which he did not complete. In April 2009, the appellant enrolled in a Certificate IV Business course. Shortly thereafter he was granted a further [NAME] visa, valid until 9 June 2010. 3 The [NAME] visa was for two full-time courses of study: Certificate IV in Business between 27 April 2009 and 9 October 2009 Diploma of Management between 12 October 2009 and 9 April 2010. 4 The appellant did not commence either course. In January 2010, the appellant enrolled in, and commenced, a Diploma of Information Technology. On 2 June 2010, he lodged an application for a further [NAME] visa but, on 7 July 2010, the application was refused by a delegate of the Minister and in that month the appellant stopped studying. He lodged an application for review of the delegate's decision with [NAME] on 30 July 2010. His application for review was heard on 12 October 2012 and in a decision dated 11 February 2013 [NAME] affirmed the decision of the delegate. 5 The application for judicial review to the [NAME] was made on 28 February 2013. The judgment under appeal, refusing that application, was given on 10 May 2013 ([NAME] v Minister for Immigration & Anor [2013] [NAME] 204). The appeal to this Court was filed on 28 May 2013. 6 To succeed in his application for judicial review to the [NAME], the appellant needed to show that [NAME] had made a jurisdictional error. The appeal to this Court is confined by that circumstance, as well as the need to show error in the judgment of the [NAME] justifying setting aside the orders of that Court. 7 The reason why the delegate refused the application for a [NAME] visa made on 2 June 2010 was because the appellant provided no evidence of full-time study. Consideration was also given to a Psychological Assessment Report submitted by the appellant. The delegate recorded his material findings as follows: The applicant failed to commence his studies with [NAME] and was subsequently asked to provide evidence of enrolment, attendance and academic transcripts between 19/05/2009 and 26/01/2010. No documentary evidence of full time study was submitted. The applicant was also given the opportunity to explain any reasons for not maintaining full time study whilst the holder of a [NAME]. On the 11/06/2010 the applicant submitted a Psychological Assessment Report which was conducted on 10/06/2010. This report has been taken into consideration. It has also been noted that the applicant made no effort to officially defer his studies with his [NAME] and nor did he return home despite the claims raised in the Report. As no evidence can be found that the applicant has maintained enrolment in an appropriate full time course of study between 19/05/2009 and 26/01/2010 the applicant has failed to meet condition 8516 and hence does not satisfy the regulation. 8 [NAME] in its decision found that the appellant had not "substantially complied" with the requirements of his earlier [NAME] visa. The relevance of that finding was identified by [NAME] as follows:

7. The criteria for the grant of a Subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets the criterion in cl.572.235. That criterion requires that '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 [NAME] also recorded:

12. The version of Condition 8516 which applied to the applicant's 572 [NAME] visa states: 8516 The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

13. One of the primary criteria for the subclass 572 [NAME] visa which the applicant held was: 572.231 The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is: (a) a principal course; and (b) of a type that was specified for Subclass 572 visas by the Minister in a Gazette Notice: (i) made under regulation 1.40A; and (ii) in force at the time the application was made. 10 As appears from these passages, there were two conditions which the appellant needed to satisfy to be entitled to a [NAME] visa. The first was to show that he had complied substantially with the requirements of his earlier [NAME] visa and [RESPONDENT] was to show that he was enrolled in, or had been offered enrolment in, an approved course of study. [RESPONDENT] requirement could be met at the time of consideration by [NAME]. 11 The decision of [NAME] referred to the appellant's non-attendance at any relevant course of study from 19 May 2009, when his last [NAME] visa was granted, until the end of January 2010, when he enrolled in a Diploma of Information Technology. [NAME] considered the appellant's explanation that his lack of diligence in relation to his studies was a result of a relationship breakdown with a [NAME] in Bangladesh in May 2009 and the fact that his mother suffered a heart attack in August 2009. [NAME] also considered statements from the applicant's parents, a letter from a [NAME] and a [NAME]'s report, on which [NAME] was not prepared to place much weight. 12 [NAME] said, in its decision: 79. … The Tribunal can accept that the applicant experienced depression for a period after the relationship breakup but considers it significant that the applicant was not so severely affected that he could not continue going to work. The Tribunal also considers it significant that the applicant did not seek any medical intervention or [NAME] counselling services following the relationship breakup in May 2009, and only saw the [NAME] in 2010 for the purposes of providing evidence to the delegate. The Tribunal was not satisfied that the applicant's circumstances were so difficult that he was prevented from remaining enrolled and undertaking study or from seeking to defer his studies on compassionate grounds. and:

82. The Tribunal considers that the applicant's breach of Condition 8516 was significant given [the] purpose for which [the] visa was granted. Having considered all of the available information, the Tribunal is not satisfied that the applicant complied substantially with that visa condition.

Accordingly, the Tribunal finds that the applicant has not complied substantially with the conditions of his last held visa and any subsequent bridging visa. 13 [NAME] also considered the appellant's explanation for why he had not enrolled in any other course, as he was permitted to do by the terms of his bridging visa. [NAME] said:

83. In addition, as put to him at hearing, 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 applicant stated that he was not enrolled and did not have an offer of enrolment. The Tribunal advised the applicant and his migration agent that this was an issue for the review because most [NAME] visa subclasses have a criterion requiring that the applicant be enrolled or have a current offer of enrolment. The applicant claimed that he would study immediately if given a positive decision by the Tribunal even though he has not studied since mid-July 2010 despite being permitted to do so on the bridging visas he has held. The applicant did not seek further time to arrange enrolment and has not sent any evidence that he is enrolled or the subject of a current offer of enrolment since being put on notice of the issue at the hearing. … 14 The appellant's application for judicial review to the [NAME] (in an amended form) advanced the following grounds: The grounds of the application 1. The Migration Review Tribunal failed to take into account the exceptional circumstances which contribute for breached [sic] of visa condition. Particulars: i) The Tribunal failed to take into account the exceptional circumstances of [NAME]'s sickness and relationship broken with [NAME] by which I was unduly affected with my overall education performance. ii) The Tribunal failed to give weight to the report from a [NAME] which indicated that I had developed anxiety and depression as a result of the sudden breakup of a one year long relationship and as a result of [NAME]'s massive heart attack.

2. The Migration Review Tribunal failed to consider my current enrolment status into the course. Particulars i) I applied for a [NAME] (Temporary) (Class TU) Subclass 572 visa to the Department of Immigration and Citizenship which was refused. I appealed to the Tribunal for refusal of this visa. ii) The Tribunal failed to consider my current enrolment status into the course in the sense that without approval of my visa I was not able to continue my course or not be able to enroll any other course until dissolve this issue. 15 These grounds do not identify any jurisdictional issue. They challenge the findings of [NAME] about the merits of the appellant's claims. However, it will be apparent from what appears above that there is no apparent substance to any suggestion that [NAME] failed to take into account, or address, issues arising from the relationship breakdown, the appellant's mother's illness, the [NAME]'s report or the appellant's failure to enrol in any course after July 2010. 16 The [NAME] also took the view that the grounds upon which the appellant relied were to no avail. The [NAME] said: Ground One 20. The applicant's first ground suffers, in what has become increasingly common in migration matters of this type, from a misunderstanding of the term "did not consider". … 22. However, any plain reading of the Tribunal's decision record reveals that such complaints cannot succeed. The Tribunal did consider what the applicant put to it. It simply did not accept that the matters put in explanation by the applicant were such as to satisfy it that the visa must be granted. … 24. The Tribunal plainly considered these claims in the sense that that term is understood at law. The Tribunal's findings were all reasonably open to it. No legal error is revealed. In that sense also, there was no failure to take into account a relevant consideration. … Ground Two 27. Ground two asserts that the Tribunal failed to consider the applicant's "current" enrolment status. As stated, on its face, this complaint is not different to those in ground one. That is, it seeks to assert a failure by the Tribunal to consider parts of the applicant's claims, or a failure by the Tribunal to take into account a relevant consideration.

28. Ground two fails for the same reason as ground one. The Tribunal did consider the matter of the applicant's current studies (as at the time of its decision) ([83] at CB 100). The Tribunal's findings in this regard were reasonably open to it on what was before it. … 32. In terms of the alleged failure to consider, the Tribunal's decision record at [79] (at CB 99) provides the answer to this charge. The Tribunal found that it was not satisfied that the applicant's circumstances were so difficult that the applicant was prevented from maintaining his enrolment, or seeking to defer his studies. This was reasonably open to the Tribunal on what was before it.

33. The answer to the applicant's submission that he would not, or could not, continue his studies in circumstances where the [NAME] visa had been refused was equally addressed by the Tribunal at the hearing. The Tribunal told the applicant that he could have continued his studies while the holder of the bridging visa that had been granted to him and was in effect at the relevant time ([57] at CB 95). In all, ground two is not made out. Oral Complaint 34. Before the Court the applicant complained that, at the hearing, the Tribunal asked him why he had not subsequently enrolled in an educational course. His submission was that he could not enrol as he had been denied a visa.

35. As the Minister submitted the applicant was already enrolled at the time when his visa application was refused by the delegate. He could have continued to study at the relevant time (because he held a bridging visa). I agree with the Minister that the fact of the refusal of the visa did not prevent the applicant from continuing his studies. It was the applicant's choice to cease his study. 17 The notice of appeal to this Court from the judgment of the [NAME] states the following grounds: Grounds of appeal 1. The Migration Review Tribunal failed to take into account the exceptional circumstances which contribute for breached [sic] of visa condition. [ADDRESS] below failed to recognised [sic] these issues: Particulars: i) The Tribunal failed to take into account the exceptional circumstances of [NAME]'s sickness and relationship broken with [NAME] by which I was unduly affected with my overall education performance. ii) The Tribunal failed to give weight to the report from a [NAME] which indicated that I had developed anxiety and depression as a result of the sudden breakup of a one year long relationship and as a result of [NAME]'s massive heart attack.

2. The Migration Review Tribunal failed to consider my current enrolment status into the course. Particulars i) I applied for a [NAME] (Temporary) (Class TU) Subclass 572 visa to the Department of Immigration and Citizenship which was refused. I appealed to the Tribunal for refusal of this visa. ii) The Tribunal failed to consider my current enrolment status into the course in the sense that without approval of my visa I was not able to continue my course or not be able to enroll any other course until dissolve this issue. 18 As will be apparent, those grounds simply repeat the grounds in the amended application before the [NAME], with the addition in Ground 1 of the sentence, '[ADDRESS] below failed to recognised [sic] these issues'. 19 The grounds of appeal in this Court do not identify any error in the judgment of the [NAME]. They do not identify any jurisdictional issue arising in connection with the decision of [NAME]. 20 Written submissions filed by the appellant for the purpose of the appeal to this Court added little to the grounds of appeal; in effect the submissions restated those grounds and suggested that the [NAME] did not consider the matters raised by the appellant, a suggestion which I do not accept. 21 At the oral hearing, the appellant repeated his assertion that [NAME] had failed to give sufficient attention to the circumstances in which he had failed to comply with the conditions of his [NAME] visa but, like the grounds of appeal and the written submissions, no form of jurisdictional error was identified or appeared from what he said. 22 In those oral submissions, the appellant made some assertions which appeared to be factually inconsistent with the responses he made to [NAME]. In his submissions-in-chief, he asserted that he had attempted to enrol in courses after his [NAME] visa was refused but was met with a need to provide evidence that he held a visa. The Minister's representative, Ms [COUNSEL], challenged this assertion and pointed out, as [NAME] had recorded, that the appellant had the right to study under the terms of his bridging visa. In his submissions in reply, the appellant accepted that the terms of his bridging visa did not represent a barrier to him studying if he wished to. That accords with the position recorded by [NAME] which said in its decision:

57. The Tribunal put to the applicant that he said he had last studied in the Diploma in IT course in July 2010 when his [NAME] visa was refused, and had not studied since then. The applicant said that this was correct. The Tribunal said that the applicant had said he had not studied because he was awaiting the outcome at [NAME]. The Tribunal said that it was unfortunate that there was a backlog of cases and consequent delays before cases could be considered at the Tribunal, but nonetheless his bridging visa would have allowed him to study while he was waiting. The applicant said that he wanted to be sure what would happen at the Tribunal before undertaking any further study; he felt he did not know what would happen tomorrow. The Tribunal said that it seemed that if he was in Australia as a [NAME] and if he was a genuine [NAME] keen to study, he would have continued with some study during this period. The applicant said he could have done so but he was just waiting each day to see what would happen. 23 In his submissions in reply, the appellant also volunteered that he had not attempted to study because his parents were not prepared to pay his fees if he did not have a [NAME] visa. That version of events was also inconsistent with the position the appellant took before [NAME] and contradicted the assertions in his submissions-in-chief that he had attempted to enrol in courses. 24 All I ultimately need to say about these matters is that they do not reveal any jurisdictional error in the proceedings or decision of [NAME] or any error in the judgment of the [NAME]. 25 As no error has been shown in the judgment of the [NAME] and no jurisdictional error by [NAME] has been identified, or appears from the material before the Court, the present appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 3 September 2013