Chhetri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 167
•19 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chhetri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 167
File number: MLG 2022 of 2016 Judgment of: JUDGE KENDALL Date of judgment: 19 October 2021 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – where the Tribunal found that the applicants were not genuine temporary entrants – whether the Tribunal looked at irrelevant material – whether the Tribunal failed to look at relevant material – whether the Tribunal’s decision was illogical or irrational – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 476, 499
Migration Regulations 1994 (Cth), cl 542.223 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Ghimire v Minister for Immigration and Border Protection [2014] FCA 899
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
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
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: 84 Date of hearing: 4 October 2021 Place: Perth Applicants: First applicant, in person Counsel for the First Respondent: Ms S Wright Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2022 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUJAN KUNWAR CHHETRI
First Applicant
RENUKA GHISING
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
19 OCTOBER 2021
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: This copy of the Court’s Reasons for judgment may be subject to review 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 citizen of Nepal (Court Book (“CB”) 1 & 35-36). The second applicant, the first applicant’s wife, is also a citizen of Nepal (CB 2 & 31-32). The first applicant was granted a Student (Temporary) (Class TU) (Subclass 572) visa in May 2008. He arrived in Australia in June 2008 (CB 54). The first applicant subsequently held either a student or bridging visa (CB 54).
On 25 March 2015, the first applicant applied for a further Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) (CB 1-8) on the basis that he was enrolled in “Advanced Diplomas of Management and Marketing” (CB 54). The second applicant was included as a dependent in that visa application.
On 27 March 2015, the then Department of Immigration and Border Protection (the “Department”) asked the first applicant to provide further information in relation to his visa application (CB 12-27).
On 22 April 2015, the first applicant provided a response to the request for information
(CB 28-29). He did so via email. Attached to that email was a statement from the first applicant (CB 30), copies of the applicants’ identity documents (CB 31-32 & 35-36), the first applicant’s educational records (CB 33-34) and various “health and financial documents” (CB 37-46).
On 8 May 2015, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 52-59). The delegate determined that the first applicant did not meet cl.572.223(1)(a) of the Migration Regulations 1994 (Cth) (the “Regulations”) as he was not a “genuine applicant for entry and stay as a student” (CB 58).
On 20 May 2015, the applicants sought review of the delegate’s decision by the then Migration Review Tribunal (the “Tribunal”) (CB 60-62). Attached to that application was a copy of the first applicant’s passport (CB 63-64) and a copy of the delegate’s decision (CB 52-59).
On 11 July 2016, the applicants (through their migration agent) provided additional material to the Tribunal (CB 77-78). That material included an “appointment or representative form” (CB 79), copies of the first applicant’s academic records (CB 80-81 & 84-96), “Overseas Student Confirmation-of-Enrolment” (“CoE”) forms (CB 82-83 & 102-105) and financial documents (CB 97-101).
On 12 July 2016, the applicants attended a hearing before the Tribunal. They did so with the assistance of their representative and an interpreter in the Nepalese language (CB 106-108).
On 13 July 2016, the Tribunal asked the first applicant (through his representative) to provide the “date upon which [the first applicant’s] results from semester 1 of 2016 [would] be available” (CB 109). On 29 July 2016, a follow up request for that information was sent to the applicants’ representative (CB 110).
On 29 July 2016, the applicants’ representative provided that information to the Tribunal (CB 113), together with a copy of the first applicant’s “Interim Academic Progress Report” (CB 114).
On 31 August 2016, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 118-129). Relevantly, the Tribunal determined that the applicant did not intend genuinely to stay in Australia temporarily. As such, the Tribunal concluded that the first applicant did not meet cl 573.223(1)(a) of the Regulations (at [41]). The Tribunal also affirmed the delegate’s decision to refuse the second applicant the visa on the basis that she did not meet the secondary criteria. There was also no evidence she would meet the primary criteria in her own right or that she would meet the criteria for any of remaining subclasses within Class TU (at [43]).
On 20 September 2016, the applicants filed an application for judicial review in this Court. That 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
While this Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring instead to summarise the Tribunal’s “core” findings), at times it is useful to recite a substantial portion of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process and to properly consider and address the contentions raised against the Tribunal: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when applicants are unrepresented and have struggled to clearly articulate their concerns. In those circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”). A more detailed overview of the Tribunal’s decision is particularly helpful in that regard.
In this matter, the Tribunal’s decision is 12 pages long and spans 44 paragraphs.
The Tribunal first identified the matter under review (at [1]), provided a list of abbreviations used in the decision (at [2]) and outlined the procedural background to the matter before it and summarised the type of visa subclasses contained in the Student (Temporary) (Class TU) visa class (at [3]).
The Tribunal explained that the delegate had refused to grant the applicants the visas on the basis that cl 572.223(1)(a) of the Regulations had not been met and confirmed that the delegate had had regard to the first applicant’s “circumstances, immigration history and any other relevant matter (including the factors set out in Direction 53)” (at [4])
The Tribunal then summarised relevant portions of the delegate’s decision as follows:
(a)the first applicant had enrolled in a number of inexpensive vocational courses since his arrival in 2008 (at [5]);
(b)the first applicant had partially completed only two of those courses (a Diploma of IT (Networking) and a Diploma of Interactive Digital Media) – referencing the first applicant’s statement provided to the Department. In that statement, the first applicant indicated that he had come to Australia to study IT but had struggled with the subject matter. Consequently, he switched to Printing and Graphic Arts, pursued some Business courses and then re-enrolled in an IT Network course. After again failing in the IT area, the first applicant decided to pursue Business studies. This resulted in him enrolling in an Advanced Diploma of Marketing (at [6]);
(c)noting that the first applicant was applying for a fourth student visa (which would bring his total time in Australia to 9.5 years), had enrolled in a number of unrelated (and low cost/low level) courses (none of which had been completed)), the delegate determined that this evidence suggested “an intention to remain in Australia”, rather than an intention to obtain educational qualifications. Further, it was noted that the first applicant had not provided evidence of close ties to Nepal (which would provide an incentive for his return). Nor had he demonstrated any benefit that the study would have for his future career plans. The delegate ultimately found the first applicant did not “genuinely intend to stay in Australia temporarily” (at [7]); and
(d)the delegate refused to grant the second applicant the visa on the basis that he did not meet the secondary criteria and there was no evidence he would meet the primary visa criteria in his own right (at [8]).
The Tribunal then confirmed that it had received an application from the applicants on 20 May 2015, together with a copy of the delegate’s decision and an appointment of a registered migration agent. The Tribunal also noted that the applicants had later appointed a different migration agent (at [9]).
The Tribunal then noted as follows:
10.On 21 June 2016, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 12 July 2016. They were requested to provide the following information to the Tribunal prior to the hearing:
•a copy of the applicant’s current CoE, as required for the grant of a student visa;
•documents that showed the applicant was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa;
•documents that showed the applicant’s past studies in Australia, including transcripts and certificates of attendance and completion, and any documents related to past or present work in Australia related to his studies; and
•an explanation of any gaps in his enrolments and any documentary evidence related to the explanation (if relevant).
The Tribunal noted that the applicants had been advised that the Tribunal would also address the factors outlined in Direction 53 and had provided a copy of the Direction to the applicants. The first applicant was asked to provide a statement addressing these factors prior to the hearing (at [11]).
The Tribunal further noted that:
12.On 11 July 2018, the Tribunal received the following documents via email from the applicants’ agent:
•interim academic progress report for the applicant from Victorian Institute of a Technology, dated 8 July 2016, showing that he received credit transfers for 4 subjects of a Bachelor of Information Technology and Systems, failed 4 subjects in semester 2 of 2015 and was currently enrolled in 5 subjects in first semester, 2016;
•letter dated 11 July 2016 from Victorian Institute of Technology certifying that the applicant was currently enrolled in, and had commenced, a Bachelor of Information Technology and Systems, start date 4 June 2016 and expected end date is 24 June 2018;
•CoE for above course showing same start and end dates and stating that the total tuition fees are $45,000 and that the applicant has pre-paid $16,875 for 4 June 2016 to 15 July 2016;
•certificate III in Printing and Graphic Arts (Graphic Pre-Press) issued to the applicant by Western Institute of Technology on 30 September 2010 and statements of results and attainment for same;
•certificate IV in Business issued to the applicant by Barkly International College on 14 June 2011, and statements of attainment and results for same;
•statement of attainment issued to the applicant by Victorian Institute of Technology for partial completion (15 units) of a Diploma of Information Technology (Networking), issued 9 October 2014;
•statement of attainment issued to the applicant by Victorian Institute of Technology for partial completion (12 units) of a Diploma of Interactive Digital Media, issued 21 April 2015;
•Diploma of Management issued to the applicant by Harward International College, 8 November 2011, and statements of completion and results;
•AMES International English for Academic Purposes Intermediate Module B Report for the applicant indicating that he achieved 35/50, issued 3 September 2008; and
•valuation of property report prepared for the applicant by Pokhara Engineering Consultancy, for property stated to be owned by the applicant, Mr Om Bahadur Kunwar and Mrs Man Kumari Kunwar, valued at NRs 10,436,863 [approximately AUD $128,893:
The Tribunal confirmed that the applicants had appeared before it and that they had been assisted by an interpreter in the Nepalese and English languages. Further, the applicants’ agent had provided legal submissions (at [13]).
The Tribunal then outlined the first applicant’s evidence before the Tribunal, as follows:
(a)the first applicant obtained a Diploma of Computer Engineering in Nepal from 2003 to 2007 and commenced a bachelor degree in IT. His parents wanted him to obtain an Australian qualification. After initially completing a 3 month ELICOS course and commencing Diploma of IT, the first applicant ceased studying IT and enrolled in a Certificate III of Printing and Graphic Design (Pre-Press). The first applicant initially said he and two friends from Nepal had swapped to the Certificate III and this appealed to him as being “something different”. The first applicant also said that he thought the career prospects would be better in Graphic Design than IT (as IT was “no longer in such demand”) and his parents supported this career change (at [14]);
(b)after completing the Certificate III, the first applicant studied a Certificate IV in Business and a Diploma of Management. He said he wanted to gain knowledge which would be useful to his future. When asked why he would need to have knowledge to run a business and work as a graphic designer, the fist applicant said he would be able to set up a graphic design or IT business in Nepal (at [15]);
(c)after completing the Certificate IV and Diploma, the first applicant re-enrolled in the Diploma of IT (Networking) course but did not complete it. He then changed course and enrolled in a Diploma of Interactive Digital Media but did not complete that course either. The first applicant said he had completed 15 units of the Networking course but his “rate of academic progress was not sufficient for the provider so he changed courses” (at [16]);
(d)the first applicant acknowledged that he had told the Department that he came to Australia to study IT and found the course to be too difficult but was determined to undertake a Bachelor of IT (and was currently enrolled in that course) and was confident he would be successful. The CoE provided by the first applicant indicated that the first applicant had enrolled in the Bachelor course in June 2016 and was due to complete the course in June 2018. The interim statement from the education provider indicated the first applicant had received credit transfers for four units, failed the four units he was enrolled in for semester two of 2015 and was currently enrolled in 5 units for semester one of 2016. In relation to those five units, the first applicant indicated he had completed all assessments but had not yet received results (though he was confident he would pass). The first applicant said he had received positive feedback from teachers, was determined to succeed and anticipated receiving results within two to three weeks (at [17]);
(e)in his statement provided to the Department in 2015, the first applicant indicated that he wanted a business career and had enrolled in courses accordingly. He explained that, when he had enrolled in a marketing course and studied for two months, his student visa application was refused and he decided to return to IT (as he had originally intended). The first applicant further indicated that he had decided to undertake a Bachelor degree (instead of a Diploma) as it would be held in higher regard. Further, an Australian qualification would be “worth more” than a degree undertaken in Nepal. He also stated that when he returned to Nepal he would open an IT business with the financial assistance of his parents (at [18]).
The Tribunal then noted that, should the first applicant be granted a further visa, he would have been be in Australia for 10 years. This, the Tribunal observed, made it difficult to accept that the first applicant genuinely wanted to stay in Australia temporarily. The Tribunal also noted that, despite having his parents and siblings in Nepal, the first applicant had only returned to Nepal on three occasions since 2008 (at [19]).
The Tribunal also noted that the first applicant’s parents own real estate in Nepal and “are quite well off”. Further, two of the first applicant’s sisters and a brother are undertaking tertiary study or studying in secondary school in Nepal. In Australia, the first applicant has his wife (the second applicant) “some cousins” and a brother-in-law. Further, the first applicant “works for 20 hours a week in a restaurant and his wife works part-time in aged care to cover day to day expenses in Australia”. However, the first applicant’s parents provide financial support for study expenses (at [20]).
The Tribunal also noted that the first applicant had confirmed that he had not worked prior to coming to Australia “because of study” and that he intended to open a small IT institute upon his return to Nepal (with his parents’ assistance) but required a Bachelor degree to do so (at [21]).
The Tribunal continued:
22.The Tribunal noted its concern about how long the applicant had been in Australia, and also that it was characterised by him changing from relatively inexpensive vocational course to relatively inexpensive low level course until he very recently enrolled in a Bachelor course. The Tribunal observed that while some change in direction might be understandable in a young person entering post-secondary schooling for the first time, the applicant was 25 years old when he came to Australia and had already completed secondary schooling and an IT Diploma in Nepal prior to that. The Tribunal indicated that it might form the view that his changes in courses were predominantly to extend his time in Australia, rather than representing any coherent academic progress and/or career plan. The applicant denied this and reiterated that he struggled with IT study in Australia at first, and therefore did a number of other courses before returning to the Bachelor of IT course. He said that he was genuine in wanting to now complete this course and return to Nepal. He and his wife had no intention to reside in Australia in the long term.
23.The applicants’ agent acknowledged that the Tribunal might have concerns about the length of time that the applicant had already spent in Australia, and the different courses in which he had been enrolled, as well as about the fact that - if granted a further student visa to complete the Bachelor of IT degree - he would have resided virtually continuously in Australia for 10 years. The agent argued, however, that the applicant had explained his study history and was genuine. He suggested that the Tribunal defer its decision until the results of the applicant's subjects for semester 1 of 2016 were released. The Tribunal agreed to do so, noting that even if the applicant had passed his subjects, this was not a guarantee that the Tribunal would take a favourable view overall of his case.
The Tribunal then detailed additional information received from the applicants’ agent, as follows:
24.On 29 July 2016, the Tribunal received additional information from the applicant’s agent, who advised that the applicant had passed 4/5 subjects. Later that day, the applicant’s agent provided an interim academic progress report from Victoria Institute of Technology for the applicant, issued on 20 July 2016, and indicating for semester 1 of 2016, the applicant had had passed 4 out of 5 subjects (obtaining 2 D grades and 2 B grades for the subjects that he passed). The applicant’s agent acknowledged that there were a number of issues with the applicant’s case, especially the length of time he had been in Australia. The applicant’s agent nevertheless requested the Tribunal to consider the facts in their totality and give the applicant a chance to fulfil his educational goal, both for himself and his family’s future. He reiterated the following points made in the hearing:
•the applicant had no other motive other than to fulfil his educational desire. Many others would stay in Australia for financial reasons but in the applicant’s case, this was not a major factor as his earnings barely covered their basic needs at present. It was acknowledged that the applicant may have been misguided but he appeared determined to succeed now;
•there were few study gaps and the applicant had continued to study even while his case was at the Tribunal under review;
•prior to coming to Australia, the applicant had a background in IT and now wanted to finish his Australian qualification in this field;
•the political situation in Nepal had stabilised and the country was developing;
•the applicant’s recent results demonstrated that he was determined to complete his studies; and
•even if the applicant was not articulate at the hearing, he was honest, blunt and frank about his history and his intentions.
The Tribunal confirmed that it had had regard to the first applicant’s current proposed course of study and noted that the relevant visa subclass was subclass 573 (which is for “Higher Education”). The Tribunal also noted that at the time of the delegate’s decision, the relevant subclass was subclass 572 (which was for “Vocational Education and Training Sector” as the applicant was at that time enrolled in a Diploma level course) (at [26]).
The Tribunal identified that the issue in the case was whether the first applicant met cl 573.223(1)(a) of the Regulations at the time of decision and outlined those provisions (at [27]).
The Tribunal also outlined the factors which the Tribunal must consider (as per Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications), as made under s 499 of the Act, as follows (at [28]):
•the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•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;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Tribunal noted that the factors in the Direction were not intended to be used as a checklist but should be used a guide to weigh the applicant’s circumstances as a whole (at [29]).
The Tribunal then considered the applicants’ evidence as to the “circumstances in their home country”, “potential circumstances in Australia” and the “value of the course to the first applicant's future”. In this regard, the Tribunal:
a)gave some weight to the fact that country information indicates that the economic situation, and economic opportunities, in Nepal are less favourable than conditions in Australia, and considered that this provided an incentive for the applicants to wish to remain in Australia. However, the Tribunal acknowledged the first applicant’s evidence that his family in Nepal was “relatively comfortable financially” (noting that the first applicant had provided proof of his family’s ownership of property) and had been willing and able to provide most of the funds for the first applicant’s studies in Australia to date.
b)noted that both the first applicant and his wife had part time employment in Australia (within the terms of their visas) but further noted the first applicant's evidence that this was “merely to meet some of their expenses and did not to them constitute a significant incentive to seek to remain in Australia”. The Tribunal had some doubts regarding this claim, as it considered long term part time work in Australia would constitute an incentive to remain to most nationals of a country less economically favourable than Australia. However, the Tribunal also acknowledged that the first applicant had provided documentary evidence suggesting that his family circumstances in Nepal were relatively comfortable (at [30])
c)in relation to the first applicant's “family composition”, accepted that his parents and four siblings reside in Nepal as do (presumably) most of his wife’s family. The Tribunal noted that while it would normally give this weight as a fairly significant incentive for the first applicant to return to Nepal at the conclusion of any study, it considered the strength of this tie to be undermined by the fact that the first applicant had returned to Nepal to see his family only three times since arriving in Australia in mid-2008 and by the fact that the first applicant’s wife is here with him in Australia with him (as is her brother and cousins of the first applicant (who are Australian permanent residents)). In the Tribunal’s view, this indicated that the first applicant also has significant family ties in Australia (at [31]).
d)noted the first applicant’s explanation that he did not return to Nepal more frequently because the breaks between semesters in his courses were relatively short, and because he and his family prioritised him remaining in Australia so as not to disrupt his studies. Nevertheless, the Tribunal considered that the fact that the first applicant had made three relatively brief return visits to Nepal in the eight years he had been in Australia undermined the claimed strength of his family ties to Nepal as an incentive to return there at the conclusion of his present studies (at [31]).
e)had doubts about the value of the first applicant’s current course to his career or employment prospects in Nepal. The Tribunal noted that, on the first applicant’s evidence, he had completed a Diploma of Computer Engineering and partially completed a Bachelor degree in this field in Nepal between 2003 and 2007 before coming to Australia. His stated aim at the Tribunal hearing was to return to Nepal and (with the financial backing of his family) to establish his own IT business or institute. The Tribunal further noted that the first applicant stated that he needed a Bachelor degree in IT to do this, and implied that an Australian one would have more prestige than a Nepali one. As discussed with the first applicant at the hearing, the Tribunal had reservations about this explanation. As noted by the Tribunal at the hearing, the first applicant had already obtained a Certificate IV in Business and a Diploma of Management in Australia, and had partially completed Diplomas of IT (Networking) and Interactive Digital Media and a Bachelor of IT and Systems. The Tribunal noted that the first applicant had also acknowledged that he could study a Bachelor of IT degree in Nepal, as he had in fact been doing before coming to Australia (at [32]).
f)determined that it could not see any impediment to the first applicant returning to Nepal and establishing an IT business on the basis of his present experience and qualifications, either with or without completing a Bachelor of IT degree there. In the Tribunal’s view, this called into question the claimed value of the first applicant’s proposed Australian Bachelor of IT and Systems degree to his future prospects, and in fact indicated that he may be undertaking this course predominantly to prolong his residence in Australia for as long as possible (particularly in the context of his visa and study history, discussed further below). The Tribunal gave this factor significant weight (at [32]).
The Tribunal then went on to consider the first applicant’s immigration history (including previous visa applications to Australia or visas to other countries) and previous travel to Australia and abroad.
Relevantly, the Tribunal:
(a)noted that there was no evidence before it that the first applicant had travelled to, or applied for visas for, any country other than Australia (at [33]);
(b)was satisfied (on the basis of the information in the Department records) and the first applicant’s oral and written evidence that (at [34]):
35.He arrived in Australia in June 2008 at the age of 25 as the holder of a subclass 572 (Vocational Education and Training Sector) visa which was valid until 1 October 2010;
•on 17 February 2011, he was granted a second subclass 572 visa valid until 14 November 2011;
•on 13 January 2012, he was granted a third subclass 572 visa valid until 9 April 2015; and
•on 25 March 2015, he made a fourth application for a subclass 572 visa, which is the subject of the Tribunal review.
(c)was satisfied that the first applicant had returned to Nepal on three occasions, totalling approximately 11 weeks, and was further satisfied that the first applicant had been enrolled in 10 courses (of which he had only completed four) (at [36]).
The Tribunal continued:
37.The Tribunal has had regard to the applicant’s explanation that he initially came to undertake a Diploma of IT but struggled to pass and therefore decided to change to a completely different field, Printing and Graphic Arts, then to change to Business/Management but then decided to return again to the field of IT and undertake a Bachelor qualification in this field. The Tribunal is mindful that a person may legitimately pursue a particular career or study path and decide to change fields. It has regard to the applicant’s explanation of why he changed from IT to Printing and Graphic Arts, and then to Business/Management before returning to IT, but regards his reasons as fairly flimsy. He essentially argued that he found it more difficult to study IT in Australia than he thought it would be and then friends suggested that he swap to Printing and Graphic Arts, which he did because he considered that it had better career prospects than IT and it would be a ‘change’ for him. The Tribunal does not consider this explanation for his change of direction to be plausible. The applicant’s background in Nepal was in IT. He was 25 when he came to Australia, not straight out of school. The Tribunal therefore has difficulty accepting that he would simply discard study in the area with which he was most familiar to pursue an apparent new career path. Similarly, his decision to undertake studies in Business and Management, rather than persisting with, or returning to IT (in relation to which he had completed a reasonably significant number of units in both his Diploma of IT Networking and his Diploma of Interactive Digital Media) also lacked a plausible explanation. In the Tribunal’s view, the applicant's continuous enrolment in relatively low level, relatively inexpensive courses in a variety of largely unrelated fields suggests that his primary aim has been to remain in Australia rather than to progress academically and return to Nepal to further his career.
38.The Tribunal acknowledges that the applicant is now undertaking a Bachelor of IT and Systems, which is consistent with his background and his original stated aim of studying in Australia, and also shows an intention to progress beyond the vocational and training sector…
The Tribunal ultimately found:
39.The Tribunal has considered the totality of the applicant’s circumstances and considers that his time in Australia since mid-2008 has been characterised by several changes of course, not all of which appear logically connected with his stated goal of opening an IT business or institute in Nepal. It is unable to accept that his study history here demonstrates logical planning or satisfactory academic progress and it does not consider that his present course would be of realistic value to his stated, aim to open his own business in Nepal, given the qualifications he has already obtained to date and his ability to purse IT studies at Bachelor degree level in Nepal. His choices must also be considered against the backdrop of his and his wife’s ongoing residence in Australia, and the fact that they have family ties here as well as in Nepal.
40.The Tribunal considers that this is a case in which the factors for and against a finding that the applicant genuinely intends to stay in Australia temporarily as a student are quite closely balanced. Ultimately, however, while the Tribunal accepts that the applicant has strong family ties in Nepal and a career plan to establish an IT business there, it is not satisfied that he has legitimate or genuine reasons for undertaking further study in Australia or that completing a Bachelor of IT and Systems degree here would be of significant value to his career, given his existing qualifications and his ability to pursue such studies in Nepal.
41.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 Tribunal finds that the applicant does not meet cl.573.223(1)(a).
Having found that the first applicant did not meet cl 573.223 of the Regulations, the Tribunal then considered the other subclasses within Class TU and found that all (with the exception of subclass 580) contained an identical requirement. On that basis, the Tribunal found that the first applicant could not meet the requirements of any of those subclasses. There was also no evidence before the Tribunal to suggest that the first applicant met the criteria for a subclass 580 (Student Guardian) visa.
On that basis, the Tribunal affirmed the decision under review (at [42]).
The Tribunal then affirmed the decision to refuse the second applicant the visa on the basis that she did not meet the secondary criteria. There was also no evidence she would meet the primary criteria in her own right or that she would meet the criteria for any of remaining subclasses within Class TU (at [43]).
The Tribunal affirmed the decision not to grant the applicants the visas (at [44]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicants on 20 September 2016 provides two “grounds of review”, as follows (transcribed verbatim):
1.Member looked at irrelevant facts. The money that earning here as a part time is nothing compared to expense that incur in Australia. Member mentioned that i am staying to earn money to send back to Nepal.
2.Member did not look at relevant information. I understand that i been in Australia for 8 years but before i came to Australia i had a computer IT background. Member did not look at my aspiration and our culture. Member disregarded one of the most important aspect of my life.
The applicants also filed an affidavit affirmed by the first applicant on 20 September 2020 which repeats these “grounds of review”.
The applicants were given an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review and supporting affidavit, both filed on 20 September 2020, a Court Book numbering 129 pages (marked as Exhibit 2), a Supplementary Court Book numbering 5 pages (marked as Exhibit 3), and written submissions filed by the Minister on 9 May 2017.
The first applicant appeared before this Court without legal representation. He was assisted by an interpreter in the Nepalese and English languages. The second applicant did not appear. The Court confirmed with the first applicant that he would speak on behalf of the second applicant. The Minister was represented Ms Wright.
The parties were granted leave to appear via Microsoft Teams. No issues were raised or arose in this regard.
The Court confirmed with the first applicant that he had a copy of the Court Book, the Supplementary Court Book and the Minister’s written submissions with him. The first applicant initially had trouble locating the Court Books and written submissions. The Court adjourned to allow the first applicant time to locate all relevant documents. When the hearing recommenced, the first applicant indicated that he located either hard copies or electronic copies of the Court Books and the Minister’s written submissions. The Court was satisfied that the applicants had been validly served with copies of those documents and the Minister tendered documentary evidence in that regard (marked as Exhibit 1).
Noting that the applicants were unrepresented (and noting the principles outlined in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]), the Court gave the first applicant an opportunity to elaborate on (or particularise) his grounds of review and outline any concerns he might have had with the Tribunal’s decision.
To assist the first applicant, the Court explained that it could only address the issue of jurisdictional error on the part of the Tribunal. The Court stressed that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, however, the Court often sees the following categories of error:
(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: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [44].
The Court also explained that it 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 limited to determining if the Tribunal made a material error in arriving at the decision it had on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272 .
Against that background, the first applicant expressed frustration that the Tribunal had “considered that he was not a genuine temporary entrant”. He explained that the Tribunal “thought he wanted to stay in Australia to earn a lot of money” and “was studying a lot of diplomas for that reason”. He also noted that the Tribunal had determined that he “had been in Australia for eight or nine years and had only returned to Nepal on three occasions and had only studied diplomas and short courses” and “had compared the Nepalese and Australian currencies”.
Unfortunately, these comments do little more than express disagreement with the Tribunal’s decision, seek impermissible merits or restate what was outlined in the Tribunal’s decision. They do not highlight jurisdictional error or highlight errors of the sort this Court can address. The Court will thus assess the applicants’ grounds of review as articulated. In that regard, in its duty to assist self-represented litigants, the Court will interpret the applicants’ grounds of review as broadly as possible to ensure that, to the extent that any arguably error is identified, it can be scrutinised. The Court has also considered for itself whether any error arises in the Tribunal’s decision: MZAIB.
CONSIDERATION
Ground 1
Ground 1 provides:
1.Member looked at irrelevant facts. The money that earning here as a part time is nothing compared to expense that incur in Australia. Member mentioned that i am staying to earn money to send back to Nepal.
Although not entirely clear, the applicants here seem to raise concerns that the Tribunal relied too heavily on the fact that the applicants were working part time in Australia and assessed this as evidence that the applicants did not intend to stay in Australia temporarily.
The Court does not accept that the Tribunal erred in this regard.
Direction 53 outlines the factors that “decision makers must have regard to”. In relation to an applicant’s “circumstances in their home country”, Direction 53 relevantly provides (Supplementary Court Book (“SCB”) 3):
9.In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
…
c.Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. This may include consideration of the applicant’s circumstances relative to the home country and to Australia.
…
Here, as per the reasoning in Ghimire v Minister for Immigration and Border Protection [2014] FCA 899, the Tribunal assessed the first applicant’s circumstances as a whole. Relevantly, in assessing the first applicant’s “expenses and employment”, the Tribunal determined as follows (emphasis added):
20.In relation to his family, the applicant said that his parents are relatively well off in Nepal as they own real estate. One of his younger sisters is studying nursing there, another sister and brother are undertaking Bachelor degrees there and his youngest brother is still in secondary schooling. In Australia, he has his wife, and also some of his cousins who are permanent residents. One of his wife's brothers is also here as a student visa holder. The applicant said that his wife works part time in the aged care sector in Australia, while he works 20 hours or less (in compliance with his student visa) in a restaurant. In response to the Tribunal’s observation that the opportunity to work in Australia might provide a strong incentive to remain here (compared to the poorer job outlook in Nepal), the applicant denied this. He stated that his parents provide the major financial support for him to study here, and he and his wife simply work to pay day to day expenses. This work is not an incentive for them to remain here long-term.
…
30.The Tribunal gives some weight to the fact that country information indicates that the economic situation, and economic opportunities, in Nepal are less favourable than conditions in Australia, and considers that this provides an incentive for the applicants to wish to remain in Australia. However, it acknowledges the applicant’s evidence that his family was relatively comfortable there financially (in relation to which he provided proof of their ownership of property …) and had been willing and able to provide most of the funds for his studies in Australia to date. The Tribunal notes that both the applicant and his wife have part time employment in Australia (within the terms of their visas) but further notes the applicant’s evidence that this was merely to meet some of their expenses and did not to them constitute a significant incentive to seek to remain in Australia. The Tribunal has some doubts regarding this claim, as it considers long term part time work in Australia would constitute an incentive to remain to most nationals of a country less economically favourable than Australia, but it acknowledges that the applicant has provided documentary evidence suggesting that his family circumstances in Nepal are relatively comfortable.
It cannot be said here that the Tribunal referenced or relied on irrelevant information or placed “too much weight” on one piece of evidence. Indeed, it would appear that the Tribunal referenced the applicants’ financial situation in Nepal favourably (ie, as a counter to any concern that the applicants wanted to stay in Australia for financial reasons). Relevantly, while the Tribunal notes that “long term part time work” in Australia can be seen as incentive to stay “for most nationals of countries with less favourable economic circumstances than Australia”, here the first applicant had provided evidence which suggested that “his family circumstances in Nepal are relatively comfortable”.
This type of assessment is precisely what is envisaged, indeed required, by Direction 53. The Tribunal assessed the materials and evidence before it in determining whether or not the applicants intended to stay temporarily in Australia.
It cannot be said that the Tribunal erred in this regard.
In relation to the applicants’ statement that the Tribunal “member mentioned that [he is] staying to earn money to send back to Nepal”, it is, again, unclear what the applicants are suggesting in this regard. There is no transcript of the Tribunal hearing before this Court. The Court can thus only reference the Tribunal’s decision when determining whether an issue was or was not discussed and/or assessed. Here, there is nothing in the Tribunal’s decision that references the first applicant “sending money back to Nepal.” Without more the Court cannot conclude that any error arises from an alleged comment.
At its core, ground 1 seems to simply take issue with the Tribunal’s findings. Disagreement does not give rise to jurisdictional error, however strong the sentiment is expressed.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
2.Member did not look at relevant information. I understand that i been in Australia for 8 years but before i came to Australia i had a computer IT background. Member did not look at my aspiration and our culture. Member disregarded one of the most important aspect of my life.
Again, although not entirely clear, the applicants here seem to suggest that the Tribunal failed to assess the first applicant’s IT background. The applicants also express frustration at what they say is a failure on the part of the Tribunal to “look at [the first applicant’s] aspiration and … culture”.
On one level, these concerns fail on a purely factual level. The Tribunal refers throughout its decision to “the first applicant’s IT background, prior to his arrival in Australia”. Relevantly, the Tribunal notes as follows (emphasis added):
24. … He reiterated the following points made in the hearing:
…
•prior to coming to Australia, the applicant had a background in IT and now wanted to finish his Australian qualification in this field;
…
…
37.The Tribunal has had regard to the applicant's explanation that he initially came to undertake a Diploma of IT. … The applicant's background in Nepal was in IT. He was 25 when he came to Australia, not straight out of school. …
38.The Tribunal acknowledges that the applicant is now undertaking a Bachelor of IT and Systems, which is consistent with his background and his original stated aim of studying in Australia, and also shows an intention to progress beyond the vocational and training sector. …
The Tribunal also considered the first applicant’s future aspirations as follows (emphasis added):
15.The applicant said that he completed the Certificate III at Western Institute, and then undertook a Certificate IV in Business at Barkley International College and Diploma in Management at Harward College. When asked why he undertook the business/management courses, the applicant said that he did so to gain knowledge that could be useful to him in future. When asked why he would need to know how to run a business if he intended to be employed as a Graphic Designer, the applicant said that if he studied business, he would be able to return to Nepal and set up his own Graphic Design and/or IT business. The applicant said that he changed from Barkley International College to Harward because the teaching method was better at the latter education provider.
…
18.The Tribunal noted that at the time he provided his statement of purpose to the Department in 2015, he said that he now wanted a business career and had therefore enrolled in marketing and management courses, not a Bachelor of IT course. The applicant said he did enrol in the marketing course, and studied this for about 2 months. His student visa application was then refused and he realised that he should go back and finish an IT qualification as he originally intended. In response to the Tribunal noting that he originally came to do a Diploma in IT (Networking) but was now proposing to do a Bachelor level course, the applicant said that a Bachelor of IT degree would be held in higher regard than a Diploma of IT in Nepal. After being asked why he could not undertake a Bachelor degree in IT in Nepal, the applicant acknowledged that he could, and had in fact done 1 year of a Bachelor degree there, but reiterated that it would be worth more for him to get an Australian - Bachelor of IT degree. When asked what his plans were upon completion of this degree in Australia, the applicant said he and his wife would return to Nepal and his parents would financially assist him to start his own IT business. When asked why he could not do that now, with the experience and qualifications he already had, the applicant said that he had still not completed an Australian IT qualification and wanted to do so.
…
21.The applicant confirmed that he was not in the workforce in Nepal prior to coming to Australia because he had been studying. He reiterated that on return to Nepal, he planned to open a small IT institute with his parents’ backing, but he needed a Bachelor degree course to do so as the Diploma concentrated on practical subjects but he also needed to obtain the theoretical knowledge that was incorporated into a Bachelor degree.
…
32.The Tribunal also has doubts about the value of the applicant's current course to his career or employment prospects in Nepal. On the applicant’s evidence, he had completed a Diploma of Computer Engineering and partially completed a Bachelor degree in this field in Nepal between 2003 and 2007 before coming to Australia. His stated aim at the Tribunal hearing was to return to Nepal and (with the financial backing of his family) to establish his own IT business or institute. The applicant stated that he needed a Bachelor degree in IT to do this, and implied that an Australian one would have more prestige than a Nepali one. As discussed with the applicant at the hearing, the Tribunal has reservations about this explanation. As noted by the Tribunal at the hearing, the applicant has already obtained a Certificate IV in Business and a Diploma of Management in Australia, and has partially completed Diplomas of IT (Networking) and Interactive Digital Media and a Bachelor of IT and Systems. The applicant also acknowledged that he could study a Bachelor of IT degree in Nepal, as he had in fact been doing before coming to Australia. The Tribunal therefore cannot see any impediment to the applicant now returning to Nepal and establishing an IT business on the basis of his present experience and qualifications, either with or without completing a Bachelor of IT degree there. In the Tribunal's view, this calls into question the claimed value of the applicant's proposed Australian Bachelor of IT and Systems degree to his future prospects, and in fact indicates that he may be undertaking this course predominantly to prolong his residence in Australia for as long as possible (particularly in the context of his visa and study history, discussed further below). The Tribunal gives this factor significant weight.
…
39.The Tribunal has considered the totality of the applicant's circumstances and considers that his time in Australia since mid-2008 has been characterised by several changes of course, not all of which appear logically connected with his stated goal of opening an IT business or institute in Nepal. It is unable to accept that his study history here demonstrates logical planning or satisfactory academic progress and it does not consider that his present course would be of realistic value to his stated aim to open his own business in Nepal, given the qualifications he has already obtained to date and his ability to purse IT studies at Bachelor degree level in Nepal. His choices must also be considered against the backdrop of his and his wife’s ongoing residence in Australia, and the fact that they have family ties here as well as in Nepal.
The Tribunal clearly had regard to the first applicant’s previous IT background and his future “plans and goals”. Having assessed that evidence the Tribunal determined that it had concerns about what it perceived to be continual changes in career direction, the “low level and low cost courses” chosen by the first applicant and the utility of any further proposed study to the applicants’ future career plans. The Tribunal also determined that the first applicant’s study history indicated an intention to “maintain ongoing residence in Australia” (at [38]).
The Tribunal ultimately found as follows:
40.The Tribunal considers that this is a case in which the factors for and against a finding that the applicant genuinely intends to stay in Australia temporarily as a student are quite closely balanced. Ultimately, however, while the Tribunal accepts that the applicant has strong family ties in Nepal and a career plan to establish an IT business there, it is not satisfied that he has legitimate or genuine reasons for undertaking further study in Australia or that completing a Bachelor of IT and Systems degree here would be of significant value to his career, given his existing qualifications and his ability to pursue such studies in Nepal.
Those findings were open to the Tribunal to make based on the evidence before it.
To the extent that the applicant takes issue with the Tribunal’s findings, on one level the applicants appear to seek merits review of the Tribunal’s decision. They would, in effect, ask the Court to review the evidence and come to a different conclusion. This Court cannot engage in an impermissible merits review of that sort: Wu Shan Liang.
Further, to the extent that the applicants believe the Tribunal’s finding that the first applicant did not intend to stay in Australia temporarily “illogical” or “irrational” the Court notes as follows.
The threshold for illogicality and irrationality is as articulated in SZMDS as follows:
130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Here, the Court is satisfied that the Tribunal's reasons are neither illogical nor irrational. Rather, they are entirely sound.
Here, the first applicant explained why he was studying in Australia, his future aspirations, his financial position and his study history. The Tribunal considered all of these matters both individually and cumulatively. However, the Tribunal was not satisfied, on the totality of the evidence before it, that the first applicant could be considered a genuine student.
In making that decision the Tribunal placed weight on the applicant’s lengthy stay in Australia, his extensive study history and the value of his study history to his future aspirations. The Tribunal carefully and forensically considered the factors specified in Direction 53 – specifically, the extent of the applicant’s personal ties to his home country, his circumstances in Australia, the value of the proposed course to the first applicant’s future, and the applicant’s immigration history.
The Tribunal considered all relevant matters and weighed the evidence before it to come to a conclusion that, while adverse to the applicants, was reasonably open for it to make.
It cannot be said in these circumstances that the Tribunal’s decision was illogical or irrational or unreasonable: as per the principles outlined in SZMDS, Li and Singh.
In relation to the claim that the Tribunal or its “Member disregarded one of the most important aspects of [the first applicant’s] life”, the applicants have not specified what “aspect” they are referring to. To the extent that the applicants are referring to the first applicant’s “IT background” or “future aspirations”, that issue is canvassed above.
The Court has otherwise been unable to identify any “important aspect” raised by the applicants which has not been addressed by the Tribunal in its decision.
On the basis of the above, ground 2 is dismissed.
CONCLUSION
The application for judicial review filed by the applicants on 20 September 2016 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 19 October 2021
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