Basnet v Minister for Immigration

[2014] FCCA 2720

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASNET v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2720

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth)

Minister for Immigration v SZMDS (2010) 240 CLR 611

Applicant: DEVEN BAHADUR BASNET

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 534 of 2014

Judgment of: Judge Driver

Hearing date: 21 November 2014

Delivered at: Sydney

Delivered on: 21 November 2014

REPRESENTATION

Solicitors for the Applicant: Mr M Nair of M S Nair & Co

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 5 March 2014 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 534 of 2014

DEVEN BAHADUR BASNET

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 5 February 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Basnet, a temporary student visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 18 November 2014.

2. Mr Basnet is a citizen of Nepal.  He applied for the visa on 18 July 2012[1]. The delegate refused the visa on 24 September 2012, finding that Mr Basnet did not satisfy clause 572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required that Mr Basnet “has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant…”[2]. Mr Basnet applied to the Tribunal for review on 19 October 2012[3].  The Tribunal held a hearing on 4 February 2014[4].

   [1] Court Book (CB) 1-8

   [2] CB 54-61

   [3] CB 63-73

   [4] CB 114-116

3. The Tribunal found that from 29 April 2011 until 4 June 2012 Mr Basnet was not studying, and so he failed to satisfy condition 8516 applicable to his previous student visa[5], and that he had not substantially complied this condition[6]. Accordingly Mr Basnet did not satisfy clause 572.235, so the visa had to be refused[7].

   [5] “[t]he 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”

   [6] CB 125-126 [12]-[14]

   [7] CB 126 [14]

4. The Tribunal considered Mr Basnet’s claims of financial difficulties, but was not satisfied that these prevented him from studying for the relevant period, and found that Mr Basnet flouted the conditions of his last student visa because he was not interested in studying and was pursuing other interests[8]. 

   [8] CB 125 [13]

5. Mr Basnet commenced these proceedings by application filed on 5 March 2014.  He continues to rely upon that application.  The application raises two grounds:

   1. The finding by the second respondent that the Applicant was “not interested in studying” and that “he deliberately flouted the conditions of his last student visa because he was pursuing other interests” is not supported by any facts.  The second respondent did not have jurisdiction to affirm the decision of the delegate of the first respondent to refuse the visa as the delegate of the first respondent:

   (a) Fails to accept the evidence of the Applicant that he did make attempts to seek support from the education provider however that he found that the institution was closed and that is the reason he could not continue his studies.

   (b) The decision of the second respondent is infected with the error of the delegate as stated at (a) above and consequently in accordance with the principles outlined by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Seligman (1999) FCA 117 (1 March 1999) the second respondent did not have jurisdiction to affirm the decision of the first respondent to refuse the visa.

   2. Further and/or in the alternative: The finding by the Tribunal that the “Tribunal is satisfied that the applicant’s financial circumstances prevented him from studying during the relevant period “is an unreasonable decision in accordance with the principles of the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 and therefore the second respondent did not have jurisdiction to affirm the decision of the first respondent to refuse the visa.

6. I have before me as evidence the court book filed on 9 April 2014. 

7. Both Mr Basnet and the Minister made written and oral submissions.  In his submissions, Mr Basnet draws attention to what may be an error in the Department’s record of his studies[9].  The solicitor for Mr Basnet provided a chronology which supports the contention that the first two entries in that departmental record are erroneous.  The remainder appear to be correct.  While I have no reason to disagree with that submission, it does not in my view have any bearing on the validity of the Tribunal’s decision. 

   [9] reproduced at CB 51

8. The Tribunal invited Mr Basnet by letter dated 23 December 2013 to attend a hearing and to provide documents to explain what was a significant gap in his studies between 29 April 2011 and 4 June 2012.  Mr Basnet accepted the hearing invitation but did not provide any documents bearing on the explanation for the gap in his studies.  As is noted by the Tribunal at [6] of its reasons[10], Mr Basnet did provide an enrolment for a new course effective the day before the Tribunal’s hearing.  It is apparent from that paragraph that the Tribunal questioned Mr Basnet about the gap in his studies.  He referred to financial difficulties.  The Tribunal was concerned about the vagueness of his responses, in particular what he was doing during the period of the gap in his studies. 

   [10] CB 124

9. Having regard to Mr Basnet’s evidence at the hearing, the Tribunal drew an adverse credibility conclusion at [13][11].  The application first asserts that there was no evidence for the Tribunal’s adverse credibility conclusion.  I reject that contention.  The evidence was the evidence obtained from Mr Basnet at the Tribunal hearing, referred to by the Tribunal at [6] of its reasons.  There is no other evidence before me, such as a transcript, of the Tribunal hearing.  I am persuaded that there was some evidence available to support the Tribunal’s conclusion. 

   [11] CB 125-126

10. The application in the alternative asserts that the Tribunal’s decision is unreasonable.  While this may be a case about which reasonable minds can differ, I have no hesitation in concluding that the Tribunal was entitled to make the decision it did on the material before it.  The decision was not illogical or irrational in the sense described by the High Court in the Minister for Immigration v SZMDS[12].  Having regard to Mr Basnet’s evidence that he was not studying for the most of the duration of his previous student visa, the Tribunal’s conclusion was at least open to it.

    [12] (2010) 240 CLR 611 at 78 and 130, 131

11. In his oral submissions and in his written submissions, Mr Basnet’s solicitor referred to an explanation proffered by Mr Basnet for the gap in his studies and provided by email to the Minister’s Department.  That email appears on pages 18 and 19 of the court book.  The explanation is reproduced in the written submissions.  The contention in that email appears to have been that Mr Basnet was diligently attempting to pursue studies at various institutions but came up against difficulties, including the closure of several institutions. 

12. The delegate dealt with the explanations proffered to the Department in the decision reproduced on pages 58 to 60 of the court book.  In particular, the delegate stated[13]:

    There is no evidence before me to indicate that in accordance with Standard 6 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Student that Mr Basnet sought assistance from his education provider’s support services during the study period in question for change in his circumstances affecting his studies.  There is not evidence that Mr Basnet applied for a deferral of studies for compassionate and compelling circumstances in accordance with Standard 13 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.  There is no evidence to suggest that Mr Basnet tried to contact the department during this period of 14 months to enquire about his visa conditions nor is his student visa status in Australia.  Because of these matters, I do not accept the explanation provided by Mr Basnet in mitigating his inability to continue to satisfy the primary criteria which permitted the grant of his previous visa.  I am therefore satisfied that Mr Basnet failed to comply with condition 8516 subject to which his previous student visa was granted.

    [13] CB 59

13. Mr Basnet presumably thought some better outcome might be obtained before the Tribunal, because he applied to review the delegate’s decision.  Strangely, it does not appear from the available material that he sought to challenge the delegate’s conclusion, or even to repeat the explanation he proffered to the Department. 

14. The fact that that explanation is advanced before me does not say anything about the validity of the Tribunal’s decision, in my opinion.  It is merely an example of the applicant after the event attempting to advance a stronger case on the merits than had been advanced at the time the Tribunal dealt with the review. 

15. I conclude that the decision of the Tribunal is free from jurisdictional error.  I will therefore order that the application filed on 5 March 2014 be dismissed.

16. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,500.  Mr Basnet did not wish to be heard on costs.  I will order that Mr Basnet pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 November 2014