Chhetri v Minister for Immigration

[2020] FCCA 1970

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHHETRI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1970

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359, 359AA

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: KAILASH K C KHATRI CHHETRI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3015 of 2019

Judgment of: Judge Driver

Hearing date: 20 July 2020

Delivered at: Sydney

Delivered on: 20 July 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms K Dunlop of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3015 of 2019

KAILASH K C KHATRI CHHETRI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Chhetri, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 22 October 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Chhetri a temporary student visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions, filed on 25 June 2020. 

2. Mr Chhetri is a citizen of Nepal. He first arrived in Australia in 2007 on a student (Subclass 572) visa for the purpose of studying Hospitality Management. Since arrival, Mr Chhetri has held a further six student visas.[1]

   [1] Court Book (CB) 77

3. Mr Chhetri applied for the visa on 17 May 2017.[2] On 16 June 2017, the delegate wrote to Mr Chhetri requesting additional information including in relation to his previous and future study in Australia.[3]  Mr Chhetri provided a response on 7 July 2017.[4]

   [2] CB 1

   [3] CB 31

   [4] CB 42-44

4. On 7 September 2017, the delegate refused to grant the visa on the basis that Mr Chhetri did not satisfy the genuine temporary entrant criteria (GTE criterion) in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[5]

   [5] CB 72-81

5. On 26 September 2017, Mr Chhetri applied to the Tribunal for review of the delegate’s decision.[6]

   [6] CB 82-84

6. On 5 April 2019, the Tribunal invited Mr Chhetri to provide information pursuant to s.359(2) of the Migration Act 1958 (Cth) (Migration Act), which involved completing an online “Request for Student Visa Information” form.[7] Mr Chhetri completed the form and provided additional evidence, including a letter of offer for an Advanced Diploma of Leadership and Management.[8]

   [7] CB 90-97

   [8] CB 99-121

7. Mr Chhetri failed to attend a hearing scheduled for 12 June 2019.[9] His application was dismissed for non-appearance.[10] Mr Chhetri applied to have the application reinstated and the Tribunal granted the reinstatement on 27 June 2019.[11]

   [9] CB 139

   [10] CB 148

   [11] CB 149-157

8. Mr Chhetri attended a hearing on 7 August 2019.[12] He provided additional evidence at the hearing.[13] On 22 October 2019, the Tribunal affirmed the delegate’s decision.[14]

   [12] CB 163

   [13] CB 167- 182

   [14] CB 189-206

Tribunal decision

1. The Tribunal identified that the relevant issue on review was whether Mr Chhetri met the GTE criterion, having regard to Ministerial Direction No 69.[15]

   [15] CB 190-191, [9]-[11]

2. The Tribunal provided Mr Chhetri with a copy of his PRISMS[16] records at the hearing pursuant to s.359AA of the Migration Act. Mr Chhetri confirmed at the hearing that the records were a correct depiction of his enrolment history.[17]

   [16] Provider Registration and International Management System

   [17] CB 193, [21]-[22]

3. The Tribunal considered that the visa application had been made in respect of Mr Chhetri’s enrolment in an Advanced Diploma of Information Technology commencing on 15 May 2017, which he conceded he did not commence.[18]

   [18] CB 194, [24]

4. The Tribunal considered that Mr Chhetri had not completed a course in which he had been enrolled in since 2012, other than a one week Certificate III in Retail Baking and that he had not maintained enrolment during the periods 8 April 2013 to 12 January 2014 and 13 August 2014 to 22 February 2015.[19]

   [19] CB 194-195, [25]

5. The Tribunal considered Mr Chhetri’s explanation for the periods in which he did not maintain enrolment including medical reasons, family issues and the earthquake in Nepal.[20] The Tribunal accepted that he had experienced a number of setbacks which were likely to have had a psychological impact on him. However, the Tribunal placed little weight on a psychologist report dated 3 July 2017 as the report did not indicate that Mr Chhetri had received any psychological treatment nor had he provided any evidence of subsequent treatment. Given the report was prepared a few weeks after the Minister’s Department requested additional information from Mr Chhetri, the Tribunal found that the report was obtained primarily for the purpose of Mr Chhetri’s visa application.[21]

   [20] CB 195, [26]

   [21] CB 195, [27]

6. The Tribunal considered that at the hearing Mr Chhetri had expressed an intention to apply for permanent residency in Australia, noting that he had lived in Australia for 10 years, felt at home here and had a responsibility to give something back to Australia.[22]

   [22] CB 195-196, [29]-[31]

7. In relation to the value of the course to Mr Chhetri’s future, the Tribunal considered his claim that the Advanced Diploma of Leadership and Management would assist his career as a baker and bakery owner. The Tribunal found that Mr Chhetri already had the qualifications for this work as he had worked as a baker since 2010 and had an Advanced Diploma of Management and a Diploma of Hospitality. The Tribunal found that a second closely related Advanced Diploma would offer only incremental improvement to his business and employment opportunities.[23]

   [23] CB 197, [37]

8. The Tribunal considered that Mr Chhetri never commenced the Diploma of Information Technology which was the subject of the visa application and after the cancellation of that enrolment did not enrol in the current Advanced Diploma course for over a year. The Tribunal found, based on the evidence as a whole, that it was more likely that Mr Chhetri had enrolled in the current course to meet the enrolment requirements for the student visa rather than because of any genuine intention as a student.[24]

   [24] CB 197, [38]

9. In relation to Mr Chhetri’s ties to Nepal, the Tribunal considered that he had parents and a brother in Nepal who own a home and a ginger products business.[25] The Tribunal considered that Mr Chhetri’s evidence about his intentions to return to Nepal to work for his cousin’s travel agency was vague and unconvincing.[26] Whilst the Tribunal accepted that Mr Chhetri had ties to Nepal, in light of the period of time which he had spent in Australia with minimal return trips to Nepal, the Tribunal was concerned that these ties did not provide an incentive to return.[27]

   [25] CB 197, [39]

   [26] CB 197-198, [42]-[43]

   [27] CB 198, [45]

10. The Tribunal considered that Mr Chhetri had ties to Australia which presented as a strong incentive for him to remain, including stable employment as a baker since 2010 and his evidence that he sees Australia as his home and intends to consider permanent residency.[28]

    [28] CB 198, [46]

11. In relation to Mr Chhetri’s immigration history the Tribunal considered that Mr Chhetri had no outstanding visa applications, that he had held seven student visas, that he had resided in Australia for approximately 12 years and had returned to Nepal on only three occasions in that time.[29]

    [29] CB 199, [49]

12. The Tribunal considered that since his arrival in 2007 Mr Chhetri had completed an English course, a certificate III and Diploma of Hospitality and an Advanced Diploma of Management, which were all completed before 2012. However, since 2012 Mr Chhetri had enrolled in a range of course which were all cancelled (other than a one-week Certificate III in Retail Baking (Bread)).[30] Whilst the Tribunal accepted that Mr Chhetri had faced difficulties due to his father’s and his own health conditions and the closure of schools, the Tribunal considered that this did not provide a complete explanation for Mr Chhetri’s failure to complete any courses of study after 2012, other than the brief Certificate III in Retail Baking.[31]

    [30] CB 199, [49]

    [31] CB 199, [50]

13. Considering all of the evidence, the Tribunal concluded that Mr Chhetri’s enrolment in the Advanced Diploma of Leadership and Management course was more likely made for the purpose of maintaining ongoing residence and circumventing the intentions of the migration program.[32]

    [32] CB 199, [51]

14. While the Tribunal noted Mr Chhetri’s claimed intention to apply for permanent residency, given that there was no evidence to indicate that he had made such an application, the Tribunal did not make any adverse finding in relation to clause 14(a)(i) of Direction 69.[33]

    [33] CB 199, [52]

15. Based on the evidence as a whole, the Tribunal was not satisfied that Mr Chhetri intended genuinely to stay in Australia temporarily and accordingly, he did not satisfy clause 500.212.[34]

    [34] CB 200, [55]-[57]

The present proceedings

1. These proceedings began with a show cause application filed on 19 November 2019.  Mr Chhetri continues to rely upon that application.  There are three grounds in it:

   1. Medical issue not considered

   2. PR (visa 190) application lodged which was done after the AAT hearing. This was also not considered.

   3. If I wasn’t an asset to NSW I wouldn’t have got invitation for Permanent Residency application so, all these time I was genuinely living in Australia and contributing to betterment of Australian Society and still would contribute a lot to Australian society.

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the book of relevant documents filed on 7 January 2020. 

3. Only the Minister filed written submissions, in accordance with procedural orders made by a Registrar on 12 December 2019. 

4. I invited oral submissions from Mr Chhetri this afternoon.  He referred to medical problems and agreed with me that the Tribunal had identified those as including psychological issues impacting, for a period, on Mr Chhetri’s studies.  Those were taken into account by the Tribunal.  I also noted that Mr Chhetri had apparently applied for a permanent residence visa, following the Tribunal hearing.  Mr Chhetri confirmed this, and said that the permanent residence visa application was still under consideration in the Minister’s Department.

5. Having invited submissions from the Minister’s solicitor, I explained the position, as I saw it, to Mr Chhetri, and invited closing submissions from him.  He did not wish to make any further submissions. 

6. There is, in my view, no arguable case of jurisdictional error arising from the grounds in Mr Chhetri’s judicial review application.  I agree with the Minister’s submissions in relation to the grounds.

7. Ground 1 does not particularise which medical evidence was allegedly not considered by the Tribunal. The medical evidence before the Tribunal related to Mr Chhetri’s heel condition, finger amputation and mental health, his father’s stroke and his grandfather’s health conditions.[35] The Tribunal referred to all of these documents at [13] of the decision and considered the effect that his and his family’s medical conditions had on his ability to study at [26]-[27] and [50]. In addition, the Tribunal considered the medical evidence provided by Mr Chhetri in support of his reinstatement application, which it ultimately accepted and allowed the reinstatement.[36] Accordingly, the Tribunal did not fail to consider any medical evidence that was before it.

   [35] see CB 45-47, 49, 51, 53-54, 69-70, 172

   [36] CB 149-150, 157

8. For completeness, in respect of the psychologist report, the Tribunal gave reasons for deciding that the report was obtained primarily for the purpose of Mr Chhetri’s student visa application at [27]. It was open to the Tribunal to place little weight on the report based on that finding.

9. In relation to Ground 2 there is nothing in the material before the Court to suggest that Mr Chhetri advised the Tribunal that he had lodged a permanent residence visa application. Rather his evidence to the Tribunal was that he intended to apply for permanent residency.[37] Indeed, the Tribunal expressly found at [52] that there was nothing before the Tribunal to indicate that he had made an application for another visa and the particulars to the ground state that the “PR (visa 190)” application was made after the Tribunal hearing. Accordingly, no error can be said to arise from the Tribunal not considering information which was not provided to it. In any event, the provision of such information would have been unlikely to assist Mr Chhetri’s claim to meet the GTE criterion as the Skilled Nominated visa (Subclass 190) is a permanent visa and proof of an application would merely emphasise his intention to reside permanently in Australia.

   [37] CB 195-196, 198, [29], [31], [46]

10. Ground 3 does no more than invite the Court to engage in impermissible merits review. It is well established that mere disagreement with a Tribunal’s decision will not establish jurisdictional error nor is the Court able to engage in merits review of the applicant’s evidence.[38]

    [38] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

11. In any event, the issue before the Tribunal was not whether Mr Chhetri was an asset to NSW or whether he had contributed to the Australian society but rather whether he met the GTE criterion. The Tribunal’s findings on this issue were open to it for the reasons it gave.

12. Neither is any arguable case of jurisdictional error discernible by me from the available material. 

13. I conclude that Mr Chhetri is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

14. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Chhetri did not wish to be heard on costs.

15. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  22 July 2020