Bayalkoti v Minister for Immigration

[2016] FCCA 2492

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYALKOTI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2492

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student (Temporary) (Class TU) visas – whether the Tribunal failed to give consideration to the applicant’s immigration history – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 499.

Migration Regulations 1994  cls. 573.221-573. 223(1)(a).

First Applicant: TEK NARAYAN BAYALKOTI

Second Applicant: ANZEE YONJAN BAYALKOTI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3178 of 2013

Judgment of: Judge Street

Hearing date: 27 September 2016

Date of Last Submission: 27 September 2016

Delivered at: Sydney

Delivered on: 27 September 2016

REPRESENTATION

Counsel for the Applicant: Mr Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The amended application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the amount of $6,250.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3178 of 2013

TEK NARAYAN BAYALKOTI

First Applicant

ANZEE YONJAN BAYALKOTI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application of a Constitutional writ within the Court’s jurisdiction, under s.476 of the Migration Act 1958 (Cth) (“the Act”), with respect to the decision of the Migration Review Tribunal (“the Tribunal”) made on 21 November 2013 affirming a decision of the delegate not to grant Student (Temporary) (Class TU) visas to the applicants. The applicants are citizens of Nepal.

The Delegate’s Decision

1. The first applicant applied for a visa on 14 March 2013, which the delegate refused on 14 May 2013.  The applicant applied for review of the delegate’s decision on 31 May 2013. The first applicant was the main applicant in the application for the visa. The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student because the delegate was not satisfied the applicant intended to genuinely stay in Australia temporarily having regard to the applicant’s circumstances and immigration history and other relevant matters. The delegate found that the requirements of cls.73.221 – 223(1)(a) were not satisfied under the Migration Review Regulations 1994 (“the Regulations”).

2. In relation to the second applicant, the delegate made reference to criterion 573.322(b) of Schedule 2 in the Regulations. Clause 573.222(b) requires the second applicant to be a member of a family unit of a person who satisfies and has satisfied the primary criteria in Subdivisions 573.21 and 573.22 of the Regulations.  Having found that the main applicant did not meet those criteria, the delegate found the second applicant must also be refused a visa.

The Tribunal’s Decision

1. By letter dated 28 August 2013, the applicants were invited to attend a hearing on 12 November 2013. The first and second applicants appeared on that date to give evidence and present submissions. The Tribunal, in its reasons, identified the adverse finding by the delegate and then turned to the consideration of the claims and evidence before the Tribunal. The Tribunal identified that the applicant was currently enrolled in and studying for a Bachelor of Creative Arts (Film and Television) at JMC Pty Limited. The Tribunal identified that the course commenced on 25 February 2013 and is ongoing until 27 February 2015. The Tribunal identified that the issue was whether the applicant met the criteria at the time of decision in clause 573.223(1) of Schedule 2 to the Regulations which relevantly provides as follows:-

   Clause 573.223(1)

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant’s circumstances; and

   (ii) the applicant’s immigration history; and

   (iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv) any other relevant matter; and

   (b) the applicant meets the requirements of subclause (2)

2. The Tribunal made express reference to the requirement to have regard to Direction No.53 Migration Act 1958 Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act (“Direction No. 53”), in para.7 of the Tribunal’s reasons. The Tribunal expressly referred to the fact that Direction No. 53 requires the Tribunal to have regard to a number of specified factors in relation to the applicant’s immigration history and relevantly in dot point 2 the Tribunal referred to:

   “The applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries.”

3. The Tribunal made reference to accepting that the applicant first entered Australia on 14 January 2009 on a Student Subclass 572 visa which was valid until 15 March 2011.  The Tribunal made reference to the fact that on 31 March 2011 the applicant was granted a Student Subclass 573 visa valid until 15 March 2013.

4. The Tribunal then made reference to the lodging of the application on 14 March 2013, which is the subject of review. The Tribunal made reference to the fact that since first entering Australia, the applicant has only been outside Australia for around five weeks in late 2012. The Tribunal identified that the applicant on that occasion visited his family in Nepal. 

5. The Tribunal then made reference to the fact that during the first applicant’s time in Australia, he had commenced the following courses, Certificate IV in Hospitality; Diploma of Accounting; Bachelor of Professional Accounting and Bachelor of Business (Management and Finance). The Tribunal then made reference to the most recent course, a Bachelor of Creative Arts. The Tribunal then made reference to the fact that the only qualification the first applicant had obtained in Australia was a Diploma of Accounting completed on 11 March 2011.  The Tribunal made reference to the fact that the course duration was around 12 months.

6. The Tribunal made reference to the applicant’s response to the Department regarding his study pathway and his intentions for lodging the visa application the subject of the review.  The Tribunal referred to the fact that the applicant applied for a Student visa in 2008 in order to study a Certificate IV in Hospitality, but on studying and working in a kitchen, he decided this was not what he wanted to pursue and subsequently enrolled in a Diploma of Accounting. This was apparently influenced by his father’s advice that he could work in his father’s business in Nepal. The Diploma of Accounting, completed on 11 March 2011, was the only course that the applicant completed.

7. The applicant then enrolled in a Bachelor of Professional Accounting and was doing well until his studies were disrupted by his wife’s visa application to join him in Australia, which was apparently rejected on two occasions.  The Tribunal makes reference to the fact that the applicant contended that by the time his wife came to Australia as a dependent visa holder, he had already failed many subjects in that course and felt too embarrassed to continue. The Tribunal makes reference to the fact that as a result, the applicant then enrolled in the business management course.

8. The Tribunal made reference to the fact that when the applicant returned to visit his family in Nepal in 2012, it was contended his father was unhappy with him for failing many subjects in Accounting and enrolling in Business Management.  The applicant alleged that he told his father of his interest in film production and while his father was not happy, the applicant eventually “convinced him about the scope of Film Industry in Nepal” and finally his father agreed to support his studies in that area. The applicant returned to Australia and enrolled in the Bachelor of Creative Arts course.

9. The applicant’s reason for pursuing that area of study was because the:-

   “Nepalese movie industry is doing well at the moment, but don’t have many Film Industry educated persons in the industry.”

10. The applicant contended he wanted to develop Nepal’s movie industry and promote quality films around the world and he told the Tribunal that while his father was not initially supportive of the desire to pursue a career in film and TV, he had since covered the entire costs of his tuition in that area of around $54,000.00. The Tribunal record shows that when asked how the applicant convinced his father to do this, the applicant said he told his father of his interest in that area and that his father told him he could do well in that industry.

11. The Tribunal referred to the applicant having successfully completed two semesters of his Creative Arts degree which was consistent with the Provider Registration and International Student Management System (PRISMS) records to which the Tribunal referred.  The Tribunal then referred to the written submissions, which were described as lengthy, provided prior to the oral hearing before the Tribunal.  Those submissions were dated 5 November 2013.

12. The applicant appeared before the Tribunal to give evidence on 12 November 2013 together with his wife, the second applicant, and their migration representative. The first applicant gave evidence and presented arguments on that occasion.  The Tribunal’s reference to the lengthy submissions included reference to the detail concerning the applicant’s migration and study history. The Tribunal set out further content in summary from those submissions.

13. The Tribunal made reference to the evidence that the applicant had given at the oral hearing and the applicant’s most recent course. The Tribunal made reference to the applicant’s evidence that he first arrived in Australia on 14 June 2009, around one month after he married in Nepal. The Tribunal made reference to the applicant having returned only once to see his family in 2012, on which occasion he remained for five weeks.

14. The Tribunal made reference to the fact that, despite the generous study breaks offered to students in Australia and his claimed strong family ties in Nepal, the applicant had remained in Australia for a protracted period before visiting his family. The Tribunal made reference to the applicant’s representative’s submissions which refer to the applicant’s interest in working in India, suggesting cumulatively that his ties to Nepal do not provide him with a strong incentive to return there.

15. The applicant responded that he did not return to Nepal to see his wife as he expected she would soon be granted a visa to join him. The Tribunal made reference to the applicant saying later in the hearing that he wants to return to Nepal as his parents are getting older and his sister needs his care. The Tribunal made reference to the fact that the applicant said that as India was not far from Nepal he could visit his family there.

16. The Tribunal made reference to the fact that as the applicant’s wife was now in Australia, the Tribunal was not satisfied that the applicant’s ties in Nepal would give him a strong incentive to return there or remain temporarily in Australia. The Tribunal then turned to the applicant’s study history in Australia and relevantly concluded, on the basis of all the evidence before it and having considered the applicant’s circumstances overall, including his immigration and study history, his circumstances in Nepal and other matters that the Tribunal had detailed, that the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia.

17. Accordingly, the Tribunal found that the first applicant did not meet the criteria under cl.573.223(1)(a) of the Regulations. It was in those circumstances that the Tribunal affirmed the decision of the delegate. 

Proceedings Before this Court

1. The grounds of the amended application are as follows:-

   1.The Second Respondent made jurisdictional error by failing to give consideration (in the sense of applying an active intellectual process) to the Applicant’s immigration history contrary to clause 573.223 (1) (a) (ii) of the Migration Regulations 1994. (The handwritten grounds mentioned in the Originating Application of 19 December 2013 are not pressed.)

   (All errors and emphasis in the original)

2. Mr Young, the Counsel on behalf of the applicant, submitted that the Tribunal, despite giving reference to the applicant’s immigration history, had failed to give consideration to the applicant’s immigration history in that there had been no active intellectual process concerning that immigration history.

3. In the written submissions, Mr Young suggested that the Tribunal had only made passing reference to matters concerning the applicant’s immigration history at paras.9 and 10 and made a reference to para.22 of the Tribunal’s reasons. 

4. Mr Young’s written submissions did not address para.12 of the Tribunal’s reasons in which there was reference to the applicant’s immigration history. Mr Young contended that the reference to immigration history in para.12 was not one in which there was an active intellectual engagement with that immigration history and that this was a reason why he had made no reference to the same. Mr Young contended that although the Tribunal had referred in its reasons to the applicant’s immigration history, the Court should conclude that there had been no active engagement specifically because there was no reference to the positive consideration referred to in the applicant’s written submissions at page 113 of the Court Book dated 5 November 2013, which relevantly said the applicant has complied substantially with his visa conditions.

5. Mr Young correctly contended that there was no reference to the positive proposition that the applicant had complied substantially with his visa conditions. Mr Young then took the Court to Direction No. 53 and in particular, paras.13 and 14 of Direction No. 53 which are as follows:-

   THE APPLICANT’S IMMIGRATION HISTORY

   13. An applicant’s immigration history refers both to their visa and travel history.

   14. In considering the applicant’s immigration history, decision makers must have regard to the follo wing factors:

   a. Previous visa applications for Australia or other countries, including:

   i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which they were refused.

   ii. if the applicant has previously applied for visas to other countries, whether they were refused a visa and the circumstances that led to visa refusal.

   b. Previous travels to Australia or other countries, including:

   i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control.

   ii. whether the applicant previously held a visa that was cancelled or considered for cancellation and the associated circumstances.

   iii. the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification.

   iv. if the applicant has travelled to countries other than Australia, whether they complied with the immigration laws of that country and the circumstances around any non-compliance.

6. Mr Young submitted that if there had been an intellectual engagement with the mandatory requirements of paras.13 and 14 of Direction No. 53, one would have expected to see reference to the applicant’s compliance with his visa conditions.

7. Mr Young took the Court to para.8 of the Tribunal’s reasons that refers to Direction No. 53 not being used as a checklist, but rather being intended to guide decision-makers to weigh up the applicant’s circumstances as a whole. Notwithstanding the eloquent submissions of Mr Young, it is apparent that the Tribunal properly understood the mandatory nature of the requirements in Direction No. 53 as identified in para.7 of the Tribunal’s reasons.

8. Direction No. 53 does not expressly require mandatory reference to the proposition that the applicant has substantially complied with his visa conditions except in circumstances identified in para.14(b)(i). Mr Young accepted that the circumstances of the present case did not fall within that provision. It is not necessary for the Tribunal to refer to the whole of the submissions or evidence before it. It is apparent from the Tribunal’s reasons that he had an active intellectual engagement with the submissions that were advanced dated 5 November 2013 and, relevantly, also that the Tribunal did have proper and adequate regard to the applicant’s immigration history as required by para.13 of Direction No.53.

9. The omission of reference to the applicant having substantially complied with his visa conditions as referred to in the written submissions of the applicant to the Tribunal, is not a basis upon which this Court should infer that the Tribunal failed to have an active intellectual engagement with requirements of Direction No. 53. In respect of the applicant’s immigration history, this was a consideration clearly identified by the Tribunal as being taken into account in its reasons.

10. I do not accept that the omission of express reference to substantial compliance with the applicant’s visa conditions, as referred to in the applicant’s submissions, as a basis upon which the inference should be drawn that the Tribunal had not engaged, as it purports to have done, with the applicant’s immigration history. There was no failure by the Tribunal to give proper and adequate consideration to the applicant’s immigration history in its reasons. The Tribunal applied an active intellectual process to the applicant’s immigration history. Ground 1 of the amended application is not made out.

11. The amended application is dismissed.  

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 October 2016