Baniya v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 709
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baniya v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 709
File number: SYG 3851 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 30 August 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence that the first applicant was studying – whether the Tribunal acted unreasonably in finding that the first applicant was not a genuine temporary entrant – whether the applicant ought to have been granted an adjournment – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), cl 573.223 in Schedule 2
Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 18 August 2022 Place: Perth Applicants: First applicant in person Counsel for the First Respondent: Mr E Taylor Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 3851 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RUKSHANA BANIYA
First Applicant
SANJAY MAHARJAN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
30 AUGUST 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
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 KENDALL:
BACKGROUND
The first applicant is a female citizen of Nepal (Court Book (“CB”) 1). She arrived in Australia in October 2013 as the holder of a student visa (CB 37).
The second applicant, also a citizen of Nepal, is the first applicant’s husband (CB 2 & 13).
On 10 June 2016, the first applicant applied for a Student (Temporary) (Class TU) (Subclass 573) visa (the “visa”) (CB 1-9). The second applicant was included in that visa application as a member of the first applicant’s family unit (CB 2-3). Annexed to the visa application were a variety of supporting documents (CB 10-14).
On 14 June 2016, the then Department of Immigration and Border Protection (the “Department”) asked the first applicant to provide further information (including information addressing the “genuine temporary entrant criterion” set out in cl 573.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”)) (CB 18-26).
On 8 July 2016, the first applicant provided a genuine temporary entrant statement to the Department, together with a copy of her Overseas Student Confirmation-of-Enrolment (“CoE”) document (CB 27-30)
On 25 August 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 36-43). The delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily and, as such, did not meet the requirements set out in cl 573.223 in Schedule 2 of the Regulations (CB 38).
On 8 September 2016, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 44-45). The applicants appointed a representative from Secure Migration Services (their “representative”) to act on their behalf in relation to the review application.
On 4 October 2017, the Tribunal invited the applicants (via email and through their representative) to attend a hearing before it on 7 November 2017 (CB 72-86). That correspondence asked that the applicants provide further material, as follows (CB 76):
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
On 26 October 2017, the applicants’ representative sent the Tribunal a completed response to hearing invitation form, a letter from the first applicant and academic records (CB 87-93).
On 7 November 2017, the applicants appeared before the Tribunal at the scheduled hearing (CB 97-100). The applicants’ representative did not attend that hearing (CB 97).
On 20 November 2017, the first applicant provided further materials to the Tribunal (via email) comprising bank statements, business documentation and academic records (CB 101-156).
On 23 November 2017, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 159-169).
On 13 December 2017, the applicants sought judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is eleven pages in length and spans 64 paragraphs.
The Tribunal began by explaining that the applicants had applied for Student (Class TU) visas on 10 June 2016 – noting that, at the time of application, Class TU contained number of subclasses and that, generally speaking, the applicable subclass was dependent on the type of course an applicant was enrolled in (or held an offer of enrolment for). The Tribunal also explained that a delegate had refused to grant the applicants the visas because the delegate was not satisfied that the first applicant intended to genuinely stay in Australia temporarily and thus did not satisfy cl 573.223 in Schedule 2 of the Regulations (at [1]-[3]).
The Tribunal confirmed that the applicants had appeared at a hearing before it on 7 November 2017, only first applicant gave evidence at the hearing and the applicants’ representative did not participate in the hearing (at [4]-[6]).
Background
The Tribunal identified that the first applicant was a 25 year old Nepalese national. The Tribunal further noted that the delegate’s decision stated that the first applicant she was granted an initial Student (Class TU) (Subclass 573) visa offshore in July 2013 (valid until August 2016), arrived in Australia in October 2013 and applied for a further subclass 573 visa on 10 June 2016 (at [7]-[8]).
The Tribunal explained that the delegate had had regard to the Provider Registration and International Student Management System (“PRISMS”) documentation regarding the first applicant’s study history (noting that the first applicant was undertaking a Bachelor of Professional Accounting at the time of the visa application) (at [9]).
The Tribunal then referenced the first applicant’s PRISMS records, as follow:
10.The PRISMS record indicated the applicant has been enrolled in and completed the following courses since her arrival in Australia:
•General English - Beginner to Advanced - 2014
•Diploma in Business - 2013 /2014
11.The PRISMS record indicated the applicant enrolled in the following courses since her arrival in Australia but the enrolment was subsequently cancelled:
•Diploma in Business - 2013/2014
•Bachelor of Business - 2014/2016
•Bachelor of Business - 2014/2016
•Certificate IV in Accounting - 2015/2016
•Certificate IV in Business Administration - 2015/2016
•Bachelor of Professional Accounting - 2015/2018
•Diploma of Accounting - 2016
The Tribunal confirmed that on 14 June 2016, the first applicant had been invited to comment on her circumstances (addressing the temporary entrant criteria) and to provide any material in support of her visa application. The Tribunal noted that the first applicant had responded to the Department’s invitation on 12 July 2016 and had provided the following information (at [12]-[13]):
(a)she did not have much exposure to foreign study when she came to Australia to pursue a degree in business;
(b)in 2014, her mother became very ill which meant that she was unable to concentrate on studies, however, she remained in Australia to study (on her father’s instructions);
(c)she found the Bachelor degree very difficult, could not understand the study material and kept “failing the units”;
(d)in consultation with her family, she decided to study accounting as this would provide “improved work prospects” in Nepal;
(e)she had decided to return to Nepal but, after meeting other Nepalese students who spoke of the benefits of studying at Holmes College, changed her mind and enrolled in a Degree course through Holmes College (thus maintaining the status of her Subclass 573 visa;
(f)her progress is now “satisfactory” and the first applicant is gaining confidence that she will be able to finish her Bachelor degree and fulfil her purpose of coming to Australia; and
(g)she has the support of her family (while she studies and when she returns) and the degree will give her improved career prospects in Nepal.
The Tribunal continued:
14.The delegate expressed concern the applicant's Student visa was granted under the streamlined visa processing (SVP) arrangements and was subject to condition 8516, which required her to continue to be a person who would satisfy the primary condition for the grant of the visa. Her Student visa was granted in order for her to undertake a Bachelor of Business at La Trobe University. An examination of her study history indicates that her enrolment was cancelled by the education provider on 17 November 2014 due to non-commencement of studies. The applicant's study history confirmed she studied a Certificate IV in Accounting, with an ineligible education provider and that her enrolment was in any case cancelled on 24 July 2015 due to non-payment of fees. The last course that the applicant completed was on 26 December 2014.
The Tribunal noted that the delegate had determined that the first applicant did not meet the requirements of cl 573.223 in Schedule 2 of the Regulations and, as such, the second applicant did not satisfy cl 573.322 in Schedule 2 of the Regulations. As a result, the applicants could not be granted the visas (at [15]).
The Tribunal explained that it had written to the first applicant on 7 November 2017 inviting her to attend a hearing before it and requesting that she provide explanations for any gaps in her enrolment (and supporting evidence). The Tribunal also advised the first applicant that it would assess whether she intended to genuinely stay in Australia temporarily (referencing Ministerial Direction No. 53 (the “Direction”)) (at [16]).
The Tribunal confirmed receipt of further material from the first applicant on 27 October 2017 (including the first applicant’s written statement, evidence regarding the first applicant’s study in Bachelor of Professional Accounting from Holmes Institute and a CoE for the first applicant’s Bachelor degree from 10 August 2015 to 31 July 2018). The Tribunal also detailed the contents of the first applicant’s statement (at [17]-[18]).
The Tribunal explained that the first applicant was given until 21 November 2017 to provide any further evidence in support of her application and, on 21 November 2017, further materials were received by the Tribunal (including bank records, ASIC business name registration, translations of documents relating to a business owned by the first applicant’s father in Nepal (including the business income and other related company financial information) and the first applicant’s interim statement of results from Holmes Institute) (at [19]-[20]).
Tribunal hearing
The Tribunal confirmed that the first applicant appeared before it at a hearing on 7 November 2017. At that hearing the Tribunal explained to the first applicant that the issue before it was whether she met the requirements set out in cl 573.223(1)(a) in Schedule 2 of the Regulations. The Tribunal also outlined the relevance of the Direction and explained that it needed to be satisfied that the first applicant was a “genuine applicant for entry and stay as a student” (at [21]).
The Tribunal then detailed the first applicant’s evidence as given at the hearing and the Tribunal’s questions as put to her (by the Tribunal), as follows:
(a)in relation to her “education in Nepal”, the first applicant completed high school in or around 2010 and enrolled in a Bachelor of Business degree at a Nepalese university but did not attend any classes because she wanted to study abroad on the basis that the quality of education in a country like Australia would be better;
(b)she did not work in paid employment prior to her arrival in Australia in October 2013 (at [22]);
(c)in relation to her “family’s circumstances” in Nepal, the first applicant’s father and uncles run a business selling kitchen utensils in Kathmandu (at [23]);
(d)the Tribunal discussed the courses the first applicant had undertaken in Australia and those she had successfully completed (at [24]);
(e)in response to why “she had failed to complete some courses” she was enrolled in and why there was significant periods where she did not study at all, the first applicant said that she felt stressed when she arrived in Australia which affected her ability to study and complete courses (at [25]);
(f)to answer “why she had initially enrolled in a Bachelor of Business” but “did not commence study”, the first applicant said that she did not start the university course because when wanted to first complete an English course and then a Diploma course because she was not used to the different teaching methods in Australia (at [26]);
(g)in relation to her current study, the first applicant explained that she is studying a Bachelor of Professional Accounting (which commenced in August 2015) because she hopes to start a business upon her return to Nepal;
(h)the first applicant is the first member of her family to study at university and with an accounting degree, she will be able to improve her family’s circumstances and positively contribute to Nepal’s society and economy (at [27]);
(i)she explained that she had not attended classes in the initial two semesters of her undergraduate program (failing to complete the initial five units in the program) but had recently successfully completed 11 subjects. The Tribunal received an updated Interim Statement of Results corroborating the first applicant’s claim to have completed 11 subjects from the Bachelor of Professional Accounting degree (at [28]);
(j)in response to “why she did not attend the initial two semesters” in the accounting degree, the first applicant explained that she did not commence studies in the course until approximately 12 months prior and that, when she came to Australia, she felt alone and stressed;
(k)the first applicant returned to Nepal from May to June in 2014, returning with her husband (the second applicant) and she had not returned to Nepal since (at [29]);
(l)the first applicant described recent completion of subjects in business ethics and accounting information systems and the content of those subjects “in more than a superficial manner” (at [30]);
(m)Australian qualifications are highly regarded in Nepal which is why the first applicant is studying in Australia (at [31]);
(n)the first applicant said that, with the exception of the second respondent, she has no family in Australia and they live in a private rental in Hurtsville. The first applicant is employed on a casual basis by a food catering business and the second applicant, until recently, was employed by a mobile repair shop but is currently in the process of establishing his own mobile phone repair shop (at [32]);
(o)neither of the applicants have military commitments in or fears about returning to Nepal (at [33]);
(p)when questioned about only completing two courses (and failing to complete a number of other courses) since her arrival in Australia, the first applicant said that she was “emotionally affected” by a 2015 earthquake in Nepal. She claimed that she was worried about her extended family (particularly her grandfather) and felt helpless being so far away (at [34]);
(q)the first applicant claimed to have been confused when her previous education consultant enrolled her in Certificates IV in Accounting and Business at the same time (because the timetables often clashed) and did not complete either course (at [35]);
(r)when asked about her future career plans, the first applicant claimed that she wanted to start a small business in Nepal and to help her parents with their business. Further, she would like to help others in Nepal and contribute to improving her country (at [36]);
(s)the Tribunal put to the first applicant that it had concerns as to whether she was a genuine temporary entrant and further concerns that she was using the student visa program to maintain the applicants’ residence in Australia (at [37]);
(t)the Tribunal raised with the first applicant that she has only had limited return trips to Nepal and had been in Australia for a number of years. The Tribunal was concerned that that, together with the second applicant’s business plans in Australia, may indicate that the first applicant had stronger ties to Australian than Nepal (at [38]);
(u)the Tribunal put it to the first applicant that her evidence regarding the value of her course to her intended future employment appeared vague and lacking in detail and that it had concerns that she had not undertaken any studies at a higher education level between her arrival in Australia and commencing the Professional Accounting degree (in July 2016) (at [39]); and
(v)when asked if she had anything further to add, the first applicant responded that she and the second applicant wanted to take something back with them to Nepal and that the second respondent would support her studies so that they can return to Nepal and support their families (at [40]).
Consideration of claims and evidence
The Tribunal identified that, given the first applicant’s proposed course of study, the relevant subclass of visa was Subclass 573 and the issue before it was whether the first applicant met the time of decision criterion in cl 573.223 in Schedule 2 of the Regulations (extracting the provisions outlined therein) (at [41]-[42]).
The Tribunal explained that, in assessing whether the first applicant satisfied the genuine temporary entrant criterion, it was required to have regard to the factors set out in the Direction – noting that those factors ought not to be used as a checklist but are intended to guide decision makers when weighing an applicant’s circumstances (at [43]-[44]).
The Tribunal confirmed that it had had regard to the documents provided to the Department and the Tribunal, as well as the first applicant’s oral evidence given at the hearing (at [45]).
The Tribunal then stated:
46.The Tribunal has considered the evidence provided by the applicant and is not satisfied she has provided sound reasons for not undertaking study in her home country, rather than - Australia. She said Australian qualifications are highly regarded in Nepal. The Tribunal accepts this may be the case, but notes the applicant had enrolled into a Bachelor of Business degree in Nepal, prior to her first arrival in Australia in 2013 and in light of the difficulties she has described experiencing in her studies in Australia, she has not given convincing evidence why she did not consider undertaking further studies in her home country, when she decided to resume her academic studies.
The Tribunal accepted that the first applicant had some family ties in Nepal (which provided some incentive for her to return) and noted the distress she had experienced following the 2015 earthquake in Nepal and when her mother was ill. However, the Tribunal also noted that the first applicant had only returned to Nepal once (during 2014) since arriving in Australia and that her ties to Nepal “have not compelled her further return” (at [47]-[48]).
The Tribunal then determined as follows:
49.The Tribunal accepts the applicant’s father has a business in Nepal producing kitchen utensils. However, the applicant's evidence about what she would do when she returned to Nepal, in terms of commencing her own business and assisting with the family business, were vague, lacking in detail and unconvincing. The Tribunal accepts she may wish to contribute to the development of her home country and the overall wellbeing of women and the wider population of Nepal, but once again her claim with regard to this issue were lacking in detail and specificity. The Tribunal is not convinced the applicant has established she has a strong incentive to return to Nepal because of her community ties to that country, or because of any well-developed plan she has for establishing a business there, or due to her potential involvement in her families' utensil manufacturing business.
The Tribunal accepted that the applicants had no military service commitments in Nepal and had no concern about returning because of political or civil unrest (at [50]).
The Tribunal accepted that the applicants were in a supportive relationship. The Tribunal also acknowledged that the second respondent was in the process of opening a phone repair business and accepted that the applicants were developing financial assets in Australia. The Tribunal noted that the lease taken out to operate the second applicant’s business was for a period of 18 months (which exceeded the first applicant’s identified study completion date). The Tribunal was satisfied that the applicants had an incentive to remain in Australia for “economic reasons” and that the first applicant had a strong incentive to maintain her residence in Australia (at [51]).
In relation to the first applicant’s study, the Tribunal stated:
52.The Tribunal has concerns the applicant did not undertake any study in the Bachelor of Business at La Trobe University, which was the rational for the grant of a subclass 573 visa to her in July 2013. The Tribunal has noted her claim to be concerned about her English language skills at that time and about the difference in the teaching methods in Australia to what she was used to in Nepal. The Tribunal is not persuaded by the claim, as the applicant would have been unaware of the teaching methods in this degree program at La Trobe University, as she did not commence any studies there.
53.The Tribunal accepts the applicant has completed a General English course and Diploma of Business since her arrival in Australia. However the Tribunal is not persuaded by the applicant’s explanations for the gaps in her studies since she completed the latter Diploma of Business in October 2014. The Tribunal is not persuaded by the applicant's claim for why she did not complete studies in either the Certificate IV Accounting course, or the Certificate IV Business course, because of confusion she had been enrolled in both of these courses concurrently. The Tribunal cannot see why she could not have elected to focus on and complete one of these two courses.
54.The Tribunal is not satisfied the applicant has explained why she did not undertake any study in Australia until the third semester of the undergraduate degree program she is currently enrolled in, which commenced in July 2016. The Tribunal is also concerned the applicant had difficulty discussing the content of the subjects she is currently studying in the accounting degree at anything but a very basic level. The Tribunal was not satisfied the applicant could discuss her current studies in the manner which would usually be the case for a person who was actively engaged with her education.
The Tribunal continued:
55.The Tribunal has considered the applicant's claim her distress after the earth quake in Nepal affected her capacity to study in Australia. The Tribunal acknowledges this was a distressing incident and could cause worries for Nepalese nationals who were overseas at that time, due to their concern for family and the general population in Nepal. However, without credible medical evidence specifying the applicant's capacity to undertake academic work was affected at that time, the Tribunal is not persuaded by this claim.
56.In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant is currently enrolled in and attending a Bachelor of Professional Accounting degree, which finishes in July 2018, she has family ties in both Nepal and at the present time in Australia, that she has successfully completed two of the courses she has enrolled in while on student visas and all the other matters she has raised. However, for the reasons outlined above the Tribunal does not accept the applicant is undertaking the current study for the reasons she claims, but rather is using it as a pathway for her and the dependent applicant to maintain residence in Australia.
Ultimately, after considering the applicants’ overall circumstances, the Tribunal was not satisfied that the first applicant was a genuine applicant for entry and stay as a student and thus did not meet the requirements set out in cl 573.223(1)(a) in Schedule 2 of the Regulations. Overall, the Tribunal concluded that the student program was being used by the first applicant to maintain ongoing residence in Australia (at [57]-[59]).
The Tribunal noted that the primary visa criteria must be satisfied by at least one member of the family unit and other members of the family unit need only satisfy the secondary criteria. Because the Tribunal did not accept that the first applicant satisfied the primary criteria for the grant of the visa, the second applicant was thus unable to be granted the visa as he was not a member of the family unit of a person who had satisfied the visa criteria (at [61]-[62]).
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (at [63]-[64]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 13 December 2017 contains three “grounds of review”, as follows (without alteration):
GROUND 1
1.As part of the reason for rejecting the claim, the Administrative Appeals Tribunal (‘the Tribunal’) stated in paragraph 39, “It is also raised with the applicant that is of concern she did not undertake studies at a higher education sector level arriving in Australia on a subclass 573via until she commenced studies in bachelor of Professional Accounting Program, Which was around July 2016”. The Tribunal shows unreasonableness in its decision as I am in process of completing my course. I have almost completed more than half of my course and will definitely complete remaining subjects within required timeframe.
2. GROUND 2
The Tribunal has made judicial error while making a decision in Paragraph 57, “The Tribunal is therefore not satisfied that the applicant is a genuine/or entry and stay as a student and is of a view that the student program is only being used to maintain ongoing residence”. I have no intention to use student visa to maintain ongoing residence status. I am a genuine student, my previous results shows that I have tried my best to complete my courses.
3.I kindly request the Honourable Court to kindly set aside the AAT’s decision of dated 23 November 2017.
In support of the application for judicial review, the first applicant affirmed an affidavit on 12 December 2017 (filed with this Court on 13 December 2017) annexing the Tribunal’s notification letter and decision, the delegate’s decision and copies of the applicants’ passports. That affidavit also states as follows (without alteration):
4.The Tribunal shows unreasonableness and made jurisdictional error in their decision.
On 22 January 2018, procedural orders were made by Registrar Cho of this Court giving the applicants an opportunity to file any amended application, affidavit evidence and written submissions. On 2 March 2022, further procedural orders were made by Registrar van der Westhuizen of this Court, again giving the applicants an opportunity to file written submissions. Unfortunately, no further materials were provided by or on behalf of the applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 13 December 2017, a Court Book numbering 172 pages (marked as Exhibit 1) and written submissions filed by the Minister on 1 August 2022.
The first applicant appeared before this Court without legal representation. The Court confirmed with her that she would also be speaking on behalf of her husband (the second applicant). The Court also confirmed with the first applicant that she had copies of the Court Book and the Minister’s written submissions.
Noting that the first applicant was unrepresented, the Court gave her an opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant stated that she thinks the Tribunal’s decision could have been different because she was still studying and has, in fact, finished “the course” (and has a certificate of completion in that regard). When asked if she thought that the Tribunal had failed to consider that information, the first applicant said that she did not know and that she had told the Tribunal that she was “just trying to finish her studies”.
Unfortunately, the first applicant’s concerns constitute no more than a request for impermissible merits review.
The Court also notes that, at the conclusion of the hearing, the first applicant asked if she could “say something” and then asked if the Court would allow her some time so that she might be able to find a lawyer.
The Court refused to grant the applicant an adjournment. The reasons for that refusal are set out below.
CONSIDERATION
Grounds of review
The applicants’ grounds of review are vague. While problematic, this Court’s preferred approach is to be mindful that, where applicants are unrepresented and may not have adequate knowledge and an ability to prepare for a hearing, or be able to understand what is required of them, the Court should read the applicants’ grounds of review as broadly as possible and remain astute to the possibility of legal error in the Tribunal’s decision and raise any concerns in that regard with the Minister. Further, in its duty to the applicants as an unrepresented litigant, this Court has remained astute to error in the Tribunal’s decision and, to the extent that this decision reveals any material error, the Court will address that error accordingly: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
For ease of reference, the applicants’ grounds of review state (without alteration):
GROUND 1
1.As part of the reason for rejecting the claim, the Administrative Appeals Tribunal (‘the Tribunal’) stated in paragraph 39, “It is also raised with the applicant that is of concern she did not undertake studies at a higher education sector level arriving in Australia on a subclass 573via until she commenced studies in bachelor of Professional Accounting Program, Which was around July 2016”. The Tribunal shows unreasonableness in its decision as I am in process of completing my course. I have almost completed more than half of my course and will definitely complete remaining subjects within required timeframe.
2. GROUND 2
The Tribunal has made judicial error while making a decision in Paragraph 57, “The Tribunal is therefore not satisfied that the applicant is a genuine/or entry and stay as a student and is of a view that the student program is only being used to maintain ongoing residence”. I have no intention to use student visa to maintain ongoing residence status. I am a genuine student, my previous results shows that I have tried my best to complete my courses.
3.I kindly request the Honourable Court to kindly set aside the AAT’s decision of dated 23 November 2017.
As outlined above, the affidavit filed in support of the applicants’ application for judicial review also provides (without alteration):
4.The Tribunal shows unreasonableness and made jurisdictional error in their decision.
The Court has reviewed the grounds of review and the material before it and considers there to be two core issues that require consideration:
(a)whether the Tribunal failed to consider evidence that the first applicant was in the process of completing studies towards a Bachelor of Professional Accounting Program; and
(b)whether the Tribunal acted unreasonably in finding that the first applicant was not a genuine temporary entrant.
These issues will be addressed below.
Issue 1: Whether the Tribunal failed to consider evidence that the first applicant was in the process of completing studies towards a Bachelor of Professional Accounting Program
When conducting a review, the Tribunal is required to give “proper, genuine and realistic consideration” to all claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33].
Insofar as the first applicant suggests that the Tribunal did not consider the completion of units towards the Bachelor of Professional Accounting program, the Court disagrees for the reasons that follow.
The Tribunal considered the first applicant’s evidence in this regard as follows:
28.She said she did not attend classes in the initial two semesters of the undergraduate program and thereby did not complete the initial five subjects offered in this undergraduate program. The applicant said she has recently successfully completed 11 subjects, eight of which are recorded as completed on the Interim of Statement of Results from the Holmes Institute, which she provided with the review application. She requested further time to provide proof she had recently completed a further three subjects in this course. The Tribunal received an updated Interim of Statement of Results, which corroborated her claim she has now completed 11 subjects of the Bachelor of professional Accounting program.
29.In relation to why she did not attend the initial two semesters in the Bachelor of Professional Accounting and did not actually commence studies in this course until around 12 months ago, the applicant said she is the first person in her family to undertake a university course overseas and when she first came to Australia to study she felt alone and stressed. She said she returned to Nepal in the May to June period in 2014 and when she came back to Australia she was accompanied by her spouse, the dependent applicant. She said she has not returned to Nepal since that time.
30.The Tribunal asked about the content of the subjects she is studying in her current course. She said she recently completed subjects in business ethics and accounting information systems, but had difficulty describing the content of these subjects in more than a superficial manner.
…
39.The Tribunal put to the applicant that her evidence appeared vague and lacking in detail as to the value of her course and future employment intentions. It also raised with the applicant that it is of concern she did not undertake studies at a higher education sector level after arriving in Australia on a subclass 573 via until she commenced study in the bachelor of Professional Accounting program, which was around July 2016.
The Tribunal then found as follows:
54.The Tribunal is not satisfied the applicant has explained why she did not undertake any study in Australia until the third semester of the undergraduate degree program she is currently enrolled in, which commenced in July 2016. The Tribunal is also concerned the applicant had difficulty discussing the content of the subjects she is currently studying in the accounting degree at anything but a very basic level. The Tribunal was not satisfied the applicant could discuss her current studies in the manner which would usually be the case for a person who was actively engaged with her education.
…
56.In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant is currently enrolled in and attending a Bachelor of Professional Accounting degree, which finishes in July 2018, she has family ties in both Nepal and at the present time in Australia, that she has successfully completed two of the courses she has enrolled in while on student visas and all the other matters she has raised. However, for the reasons outlined above the Tribunal does not accept the applicant is undertaking the current study for the reasons she claims, but rather is using it as a pathway for her and the dependent applicant to maintain residence in Australia.
The Tribunal expressly considered what the first applicant was studying, that she had completed 11 units towards the degree and her delay in commencing study at a higher education level. Ultimately, however, based on a detailed consideration of all of the evidence before it, the Tribunal was not satisfied that the first applicant genuinely intended to stay in Australia temporarily.
No error arises in this regard.
Issue 2: Whether the Tribunal acted unreasonably in finding that the first applicant was not a genuine temporary entrant
To the extent that the applicants suggest that the Tribunal acted unreasonably in determining that the first applicant was not a genuine temporary entrant, the Court disagrees.
This Court recently discussed legal unreasonableness in its decision of Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673. That analysis applies here and is repeated below.
Legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision making: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4].
The principles in relation to legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The Tribunal here outlined the first applicant’s evidence at the Tribunal hearing in detail (at [21]-[40]). The Tribunal then set out the considerations it was required to have regard to (as outlined in the relevant Direction) and how the factors set out in the Direction ought to be used when determining whether an applicant satisfies the genuine temporary entrant criterion (at [42]-[43]).
After detailing the first applicant’s evidence as provided at the hearing (outlined above), the Tribunal then assessed that evidence, together with the documents provided to the Department and to the Tribunal – again, in forensic detail (at [46]-[57]).
On the basis of all of the evidence before it and its assessment of the first applicant’s “overall circumstances”, the Tribunal ultimately determined as follows:
58.Based on what is evidenced of the applicant's circumstances overall, including her immigration and study history, her circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
59.On the basis of the above, and having considered the applicant's circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223{1)(a).
60.The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 {Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.
Further, in relation to the second applicant, the Tribunal found as follows:
61.The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head's household and is dependent on the family head.
62.As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.572.223.
The Tribunal’s findings in this matter are entirely logical and reasonable. It cannot be said here that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33].
No error arises in relation to issue 2.
Adjournment request
As outlined above, at the conclusion of the hearing, the first applicant asked if the Court could allow her some time so that she might be able to find a lawyer to assist her with her case.
To the extent that the first applicant was making a request for an adjournment, the Court declined to grant any such adjournment.
Noting the principles articulated in Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27 and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44], the Court notes that this matter has been on foot since December 2017. Further, the Court notes that the applicants did not file any additional evidence or submissions with the Court (even though they were given multiple opportunities to do so). There was also no evidence before the Court to suggest that the applicants had attempted to obtain legal advice or legal assistance at any point since filing the application for review, nor that the applicants would be able to secure legal assistance should the matter have been adjourned. There was also no indication made in the lead up to, at the commencement of or at any point during the hearing that the applicants were seeking an adjournment of the matter. In fact, the first applicant only made a request after the hearing had been concluded and the Court had reserved its judgment.
On that basis, the Court refused to grant the applicant an adjournment.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicants on 13 December 2017 have failed to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 August 2022
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