FEDERAL COURT OF AUSTRALIA Kaur v Minister for Immigration and Border Protection [2016] FCA 1600 Appeal from: Kaur & Ors v Minister for Immigration & Anor [2016] FCCA 1530 File number: NSD 1065 of 2016 Judge: DOWSETT J Date of judgment: 31 October 2016 Catchwords: MIGRATION – judicial review of refusal to grant a student (class TU) visa – appeal from the Federal Circuit Court – where alleged error due to insufficient time to prepare – no appealable error established. Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Date of hearing: 31 October 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the First Appellant: The First Appellant appeared in person Counsel for the Second and Third Appellants: The Second and Third Appellants did not appear Solicitor for the First Respondent: Ms A Lucchese of Sparke Helmore Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS NSD 1065 of 2016 BETWEEN: PERVINDER KAUR First Appellant MANOJ KUMAR Second Appellant HARLEEN Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: DOWSETT J DATE OF ORDER: 31 OCTOBER 2016 THE COURT ORDERS THAT: 1. the first and second appellants' appeal be dismissed; 2. the first and second appellants pay the first respondent's costs; and 3. the appeal otherwise be adjourned to a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DOWSETT J: 1 This is an appeal from a decision of the Federal Circuit Court. The second respondent has filed a submitting appearance. The appellants are citizens of India. The first appellant arrived in Australia in 2009. Whilst in Australia, she has completed a Certificate III in Hairdressing and a Certificate IV in Business. She commenced study for a Diploma of Business but for financial reasons, she ceased her studies prior to the expiration of her student visa. On 4 August 2013 the first appellant applied for a student (temporary) (class TU) visa to undertake study in Australia. The second and third appellants were included in the first appellant's application. Their claims stand or fall with that of the first appellant. On 5 August 2013, the department wrote to the first appellant, requiring that she provide to the department, within 28 days, evidence: that she had adequate health insurance arrangements until 16 October 2015; of English language ability; of financial capacity; and of a medical examination. 2 At the time of the appellant's application, the student (temporary) (class TU) visa comprised a number of subclasses. A delegate of the Minister assessed the first appellant against the criteria for the grant of a sub-class 572 visa, noting that she was enrolled in, or had been offered a place in a course of study which had been specified as a course for a sub-class 572 visa. 3 Schedule 2 to the Migration Regulations 1994 (Cth) contained provisions concerning the grant of such a visa. On 3 October 2013, the delegate refused to grant the appellant a visa under s 65 of the Migration Act 1958 (Cth), the reason being that the delegate was not satisfied that she met the requirements for English proficiency, financial capacity, health cover and a medical examination. 4 On 11 October 2013 the appellants applied to the Tribunal for review of the delegate's decision. The first appellant attended a hearing before the Tribunal on 27 August 2014. During the hearing, the first appellant stated that she had not studied since the cancellation of her previous student visa, and that her college had cancelled her confirmation of enrolment. In relation to financial capacity, the first appellant said that she could now be supported by friends in Australia who could lend her money. The first appellant provided the Tribunal with a Medibank receipt dated 24 July 2014, and said that the appellants had attended for medical examinations. The first appellant stated that she did not have evidence of meeting the English language requirement but was awaiting the results of an IELTS test, which test she had completed on 16 August 2014. 5 On 17 September 2014, the Tribunal delivered its decision, affirming the delegate's decision. In affirming that decision, the Tribunal noted that the issue before the Tribunal was whether at the time of its decision, the first appellant met the requirements for a student (temporary) (class TU) visa. The Tribunal found that the first appellant was not enrolled in, nor had a current offer of enrolment in any applicable course of study. As a consequence, the Tribunal found that the appellants did not meet cl 572.332B of Sch 2. 6 On 13 October 2014, the appellants applied to the Federal Circuit Court for judicial review of the Tribunal's decision. In that application, the appellants raised the following grounds of review: 1. The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations. Particulars: a. The Applicant applied for a review on or about 1 November 2013. As there as no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent. In fact the Second respondent took almost 1 year to take action on the Applicants file. b. The Second Respondent was bound by s359 of the Migration Act 1958 to invite the applicant to provide further information. If the information was submitted to the satisfaction of the Second Respondent, then a hearing might not have been required and a favourable decision could have been made. In the period of 1 November 2013 to 21 July 2014 Second Respondent took no action and did not issue a s 359 letter. On the 22 July 2014 the Second Respondent gave the Applicant less than 30 days' notice to obtain the required documents and evidence including a satisfactory IELTS result. c. The Applicant appeared for the hearing on 27 August 2014 with the Confirmation of Enrolment (CoE) which was issued by the education provider but had expired and proof of booking of an IELTS test that she had completed and was expecting the result for on 29 August 2014. The Applicant was unable to provide the information within the 30 Days given the financial information must also be relevant to a COF letter and the IELTS has a long waiting period. d. The Applicant made several requests to the Second Respondent to allow additional time to obtain COE letter, financial documents from overseas (India), and IELTS as the documents could not be obtained for the allocated hearing. e. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it required the applicant to have financial documents prepared within 4 weeks that would have taken about 7 – 8 weeks to obtain. The Applicant could not have obtained the financial documents until she received the CoE letters. The Tribunal failed to take this into account that the applicant needed time to obtain the CoE letter, financial documents and IELTS. 2. The Second Respondent decision was so unreasonable that no reasonable tribunal member would have made it. Particulars: a) The Applicant has successfully completed courses in Australia and still continued studying even after the visa application was refused. The Applicant was not required to continue studying after obtaining bridging visa. The Applicant was not prepared to take risk to pay a substantial amount in tuition fees up front without obtaining a student visa as she could have been compelled to depart Australia at any time if the application was refused. b) The Second Respondent was entitled to wait until after receiving a request from the Second Respondent to prepare her financial information for submission as regulation 5A required that any financial information must be recent and relevant to the Course the Applicant intends to undertake. Since the Applicant's financial documents were required to be consistent with the course enrolled for, and the financial documents were required to cover the costs of the relevant course and be recent at the time of the Second Respondent decision, it was not reasonable for the tribunal to find that the Applicant should have prepared the financial documents in advance when she lodged her application in November 2013. The Second Respondent blatantly ignored these facts and made a decision three weeks after the hearing without even given a three week adjournment to provide documents and without having due regard to the time requirements of the financial information. c) After waiting 8 months to begin processing the Applicant's application the Tribunal refused to allow a further three weeks for the Application to prepare financial information in circumstances where the documents had to come from India and had to be up to date documents in relation to the course that was confirmed by a COE Letter. In circumstances where the Tribunal took three weeks to make the decispion anyway, no reasonable Tribunal member would refuse an adjournment of 3 weeks. 3. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations in refusing the application request for an adjournment or additional time to provide current financial information. The Applicant relies on the principle in Minister for Immigration and Citizenship v Li [2013] HCA 13 (8 May 2013). Particulars a. The applicant relies on the particulars in grounds 1 and 2 above. (Errors in original.) 7 Before the Circuit Court, the appellants did not provide any written or oral submissions in support of their application. When prompted by the primary Judge, the first appellant stated that she needed more time to gather financial documents in support of her visa application. The primary Judge found no jurisdictional error on the part of the Tribunal and concluded that: ... the decision of the Tribunal is a privative clause decision and the application must be dismissed. 8 The appellant then appealed to this Court against that decision, the grounds being that: 1. The Tribunal did not provide sufficient time to obtain and prepare documents relevant to the application, and this constituted a breach of procedural fairness or a failure to take into account the length of time it would take to procure such documents; and 2. The Tribunal acted unreasonably in not deferring its decision in the matter to allow the appellant further time to provide documents. The Tribunal should have considered in Appellant's favour in providing a further opportunity for documents to be provided to the Tribunal. The Tribunal refused to allow the Appellant further time in which to provide further evidence. 9 These grounds of appeal, in effect, merely recycle the grounds offered in support of the application for the issue of constitutional writs before the primary Judge. They are not properly grounds of appeal at all. The appellant today frankly conceded that there was no error in the primary Judge's reasons. She indicated that she required more time in which to provide relevant documentation in support of her application. 10 It was not within the capacity of the primary Judge, nor is it within my capacity, to extend time in that way. The primary Judge could only have upheld or dismissed the application for the issue of constitutional writs. I may only deal with the appeal from the decision below. The question of an extension of time was for the Tribunal. The primary Judge was satisfied that it had not in any way erred in its conduct of the matter. 11 In those circumstances, this appeal must be dismissed. I order that the first and second appellants pay the first respondent's costs of the proceedings. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 20 July 2017