Bajracharya v Minister of Home Affairs
[2022] FedCFamC2G 554
•8 July 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bajracharya v Minister of Home Affairs [2022] FedCFamC2G 554
File number(s): ADG 419 of 2018 Judgment of: JUDGE BROWN Date of judgment: 8 July 2022 Catchwords: MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal – citizen of Nepal – Student (Temporary) (Class TU) visa – no jurisdictional error established – application dismissed with costs Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Act 1958
Migration Regulations 1994 (Cth) cls 500.111, 500.211
Cases cited: DHT16 vMinister for Immigration and Border Protection [2019] FCA1073 Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 1 July 2022 Place: Adelaide Counsel for the Applicants: In person Counsel for the Respondents: Mr Ellison Solicitor for the Respondents: The Australian Government Solicitor ORDERS
ADG 419 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SACHIN BAJRACHARYA
First Applicant
RENU MAHARJAN BAJRACHARYA
Second Applicant
SARAH BAJRACHARYA (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The application filed 17 October 2018 be dismissed.
2.The applicant pay the respondent’s costs filed in the sum of four thousand dollars ($4,000).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 29 October 2018, which confirmed an earlier decision of a Delegate of the Minister for Immigration (“the Delegate”), not to grant the applicant a Student (Temporary)(Class TU)(subclass 500) Visa pursuant to the provisions of the Migration Act 1958.[2]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the Act”.
The Applicant is Sachin Bajracharya[3]. He is a citizen of Nepal. He applied for the relevant visa on 18 October 2016. In support of his application, he indicated an intention to complete an Advanced Diploma of Hospitality before he and his family returned to Nepal at the end of 2017.[4]
[3] Hereinafter referred to as “Mr Bajracharya” or “the Applicant”.
[4] See Court Book at page 21.
Mr Bajracharya is the primary visa applicant, which also supports his wife Renu Maharjan Bajracharya and their two children Sarah born 9 December 2014 and Ryan born 18 February 2013. Both children were born in Adelaide but remain Nepalese citizens.
Mr Bajracharya has previously completed other tertiary studies in Australia, after first arriving in this country in February 2010. The criteria applicable to the relevant visa are set out in Clause 500.211 and following of the Migration Regulations 1994.[5]
[5] Hereinafter referred to as “the Regulations”.
In general terms, applicants for a Student Visa, of the category sought by the Applicant, are required to establish satisfaction of the following requirements, amongst others:
·An enrolment in an approved course of study;
·That the applicant is a student, who genuinely intends to remain in Australia only temporarily in order to complete the relevant course of study.
On 27 January 2017, the Ministerial Delegate found that Mr Bajracharya did not satisfy the relevant criteria for the grant of the Student Visa in question. In this context, the Delegate found that the Applicant had held five previous Student Visas and had left Australia on only one occasion between March 2010 and November 2017. During this period, he had completed seven courses of tertiary study and cancelled four other courses. In these circumstances the Delegate found as follows:
·The Applicant had been working in restaurants for the past two years, whilst in Australia;
·The Delegate was not satisfied that the Applicant had significant incentives to return to Nepal;
·An inference was open that the Applicant had only re-commenced studies for the purpose of prolonging his stay in Australia in order to apply for permanent residency in this country;
·After successfully completing a Master of Social Work course, in June 2012, the Applicant had regressed to short and inexpensive vocational education courses.
In this context, the Delegate found that the Applicant was not genuinely intending to stay temporarily in Australia. The following finding was made:
I am not satisfied that the information provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, value of proposed courses to his future and his immigration history, are sufficient to demonstrate that the applicant is a genuine temporary entrant.[6]
[6] See Court Book at page 93.
As a consequence of this decision, the Applicant applied to the AAT for a review of the relevant decision on 3 February 2017. Thereafter, on 12 July 2018, the Applicant was invited to appear before the Tribunal, on 14 August 2018, to provide evidence and to make any relevant submissions in support of his visa application.[7] In this context, a Delegate of the Tribunal registrar indicated that it was necessary for the Applicant to provide the AAT with the following documents at the hearing date scheduled:
·A copy of his current Certificate of Enrolment (COE) or other documentary evidence that indicated that he was enrolled in a course of study as defined in cl.500.111 of the Regulations;
·Documentary evidence regarding his past academic studies in Australia;
·Any other documents which supported his claim that he was genuine in his assertion that he was in Australia temporarily in order to complete a course of study.[8]
[7] See Court Book at page 109.
[8] See Court Book at page 110.
On 7 August 2018, Mr Bajracharya through his migration agent withdrew his application to the AAT for review of the relevant migration decision. However, on 22 August 2018, his migration agent advised the Tribunal that the withdrawal had been made on the basis of a misunderstanding. As a consequence, a request was made for the relevant hearing to be rescheduled. This application was granted and the case rescheduled for 19 September 2018.
Prior to the rescheduled hearing, the Applicant’s migration agent indicated that she would not be attending the hearing on his behalf. However, the Applicant was again advised of the various documents, which he needed to bring to the hearing. He elected not to seek the assistance of an interpreter for the hearing.
As at the date of the hearing before the AAT, the only evidence regarding Mr Bajracharya’s enrolment in a course of training was that he had enrolled in an Advanced Diploma of Hospitality, provided by AHTS – Training & Education, which course commenced on 17 November 2016 and concluded on 17 November 2017.[9]
[9] See Court Book at page 62.
The relevant visa criteria, contained in Regulation 500.211 requires proof of enrolment, in an approved course of study, at the time any decision is made in respect of the relevant application.[10]
[10] See Regulation 500.2.
In its decision, provided in writing on 29 October 2018, the Tribunal articulated the issue before it, in the following terms:
While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the Tribunal now is whether, at the time of this decision, you meet the enrolment requirements for a student visa.[11]
[11] See Court Book at page 202 [9].
In this context, the Tribunal indicated that Mr Bajracharya had been requested to provide evidence that he had a current Certificate of Enrolment, as at the date of hearing, but had not produced it. In these circumstances, the Tribunal found as follows:
In your sworn evidence before the Tribunal you confirmed that you were last enrolled in a Diploma of Hospitality Management which you graduated from on 12 September 2017. You further confirmed in your sworn evidence that you are not enrolled in any course of study in Australia.
Accordingly, there is no evidence before me that you are now enrolled in any course of study. There, the Tribunal is not satisfied that at the time of this decision that you are enrolled in a course of study and accordingly clause 500.211 is not met.
Given the above findings the Tribunal finds the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meed the criterial for a Subclass 590 (Student Guardian) visa. For these reasons, I conclude that the decision under review should be affirmed.[12]
[12] See Court Book at page 203 [15]-[17].
THE GROUNDS OF REVIEW
The Applicant has prepared his own grounds of review. He seeks orders quashing the AAT decision and that the application be returned to the Tribunal for fresh determination. It is his position that, as he was enrolled in a full time course of study, when he applied for the visa, he has satisfied the relevant conditions.
In this context, he points to the fact that he completed the Advanced Diploma of Hospitality Management course in the period between his application and the AAT determination, which cannot be attributed to any fault on his part.
In specific terms, the Applicant asserts as follows:
At the time of the hearing by the Second Respondent on 19 September 2019, the First Respondent was not enrolled in the Diploma of Hospitality course, however, the First Respondent provided the Second Respondent the qualification of the Diploma of Hospitality. By doing so, the First Applicant satisfied the requirement of Condition 8202(2) of the Immigration Regulations 1994.
The Second Respondent erred in law to require the First Respondent to be currently enrolled in a registered course at time of the hearing by the Second Respondent on or about 19 September 2018.[13]
[13] See Court Book at page 4 [4]-[5].
Condition 8202, to which the Applicant has referred, was potentially germane to the Ministerial Delegates’ decision, which was grounded on considerations relating to whether Mr Bajracharya was intending to remain temporarily in Australia, whilst he engaged in study. The condition requires a student visa holder to adhere to certain course enrolments, attendance and academic progress requirements, as a condition of any student visa issued.
In the current matter, in my view, given the grounds on which the AAT determined to reject Mr Bajracharya’s visa application, it is of no moment that he had successfully completed the relevant course prior to decision.
THE APPLICABLE LEGAL FRAMEWORK UNDER THE ACT
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
In order to be successful in his application for review, it will be necessary for the Applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own decision for that of the Tribunal. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the Applicant, which does not arise from his application.
CONCLUSIONS
I can appreciate why the Applicant is conceptually perplexed by the manner in which the review before the AAT was conducted. In conceptual terms, the factual issue, which the Ministerial Delegate, on the one hand and the AAT on the other hand had to deal with were different.
The Delegate was conferred with the jurisdictional task of determining whether the Applicant had demonstrated an intention to remain temporarily in Australia, whilst he studied; whilst the AAT was conferred with the jurisdiction of determining whether, at the time of the decision, Mr Bajracharya was enrolled in an approved course of study.
However, as White J pointed out in DHT16 v Minister for Immigration and Border Protection[14] the Tribunal member was not bound by the reasoning of the Ministerial Delegate. Rather, the Tribunal is directed to undertake its own independent review of the material before it and reach its own decision on that material at the time of hearing.
[14] DHT16 vMinister for Immigration and Border Protection [2019] FCA 1073 at [31].
As such, it was not necessary for the Tribunal to consider whether the Applicant had or had not satisfied the requirement of Condition 8202(2). Rather, it was required to consider the application of Clause 500.111 to the Applicant’s circumstances.
In this context, the Tribunal found that the Applicant was not enrolled in the Diploma of Hospitality course at the time of hearing and therefore had not satisfied the relevant visa criteria.
It is extremely regrettable that it has taken a long time for the Applicant’s judicial review application to come before the court. However, this significant delay cannot provide any ground for judicial review. The fact remains that the Applicant was not able to establish that he was enrolled in a course of approved study at the relevant time. Accordingly, he has not been able to demonstrate any jurisdictional error leading to the vitiating of the applicable decision.
For all these reasons, his application must be dismissed. The First Respondent seeks costs in an amount of $4,000.00, which is less than that provided by the relevant schedule to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. It is appropriate that an award for costs be made in this sum.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 8 July 2022
SCHEDULE OF PARTIES
ADG 419 of 2018 Applicants
Fourth Applicant:
RYAN BAJRACHARYA
0
1
3