DEVKOTA v Minister for Immigration

[2020] FCCA 3040

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVKOTA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3040

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider relevant information – whether the Tribunal made a decision that was irrational or unreasonable – whether the Tribunal took into account irrelevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), sch.2, cl.500.212

Applicant: PRALHAD DEVKOTA

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 218 of 2020

Judgment of: Judge Street

Hearing date: 10 November 2020

Date of Last Submission: 10 November 2020

Delivered at: Sydney

Delivered on: 10 November 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr N McArdle, Sparke Helmore, via Microsoft Teams.

ORDERS

1. The oral application for an adjournment is dismissed.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 10 November 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 218 of 2020

PRALHAD DEVKOTA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 January 2020 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of Nepal and came to Australia in 2008 as the holder of a Subclass 572 Student visa. 

3. On 20 September 2017, the Delegate refused to grant the applicant the visa, having found that the applicant was not a genuine temporary entrant, and that the relevant criteria was not met. 

4. The applicant applied for review to the Tribunal. The applicant was invited to, and attended, a hearing before the Tribunal to give evidence and present arguments on 2 September 2019. 

5. The Tribunal identified the background to the application for the visa and summarised the applicant’s evidence in relation to the hearing that took place, which included identifying that his wife is now applying for a Protection visa. 

6. The Tribunal identified the relevant statutory provisions and criteria that the applicant had to meet, and that his wife is residing with him in Australia.

7. The Tribunal was not satisfied the applicant’s current course will contribute to his future. 

8. The Tribunal identified concern that the applicant was enrolling for the purpose of staying in Australia. 

9. The Tribunal was not satisfied the applicant intends genuinely to stay in Australia temporarily. The Tribunal found that the applicant did not meet the criteria in cl 500.212(a) of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 3 February 2020. On 27 February 2020, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents have been filed. 

2. At the commencement of the hearing today, the applicant sought an adjournment on the basis that he wished to obtain legal representation and because of the COVID-19 virus. The adjournment was opposed by the first respondent. 

3. The Court is satisfied that the applicant has had ample opportunity to obtain legal representation if he was able to do so. The Court is not satisfied that the applicant would be able to obtain legal representation if granted an adjournment.

4. Further, the Court has taken into account the want of substantive merits in respect of the application before the Court. The Court is satisfied that an adjournment was not warranted in the interests of the administration of justice. It is for these reasons the Court declined the adjournment request by the applicant.

5. The applicant made reference to his studies that he had pursued and his desire not to return to Nepal. 

6. Nothing said by the applicant amounted to more than an invitation to merits review. 

7. No jurisdictional error was identified by the applicant’s oral submissions. 

The grounds

1. The grounds in the application are as follows:

   1.The Second Respondent made jurisdictional error by denying the Applicant procedural fairness.

   Particulars

   a)     The Applicant notified the Second Respondent that he will complete his course in December 2019.

   b)     The Second Respondent failed to inform the Applicant that its decision will be made after December 2019, but waited until January 2020 to affirm the decision not to grant the Applicant's visa.

   c)   The Second Respondent failed to confirm if that applicant had completed his course prior to making its decision on the 7^th of January.

   2.The Second Respondent made jurisdictional error by failing to take into account crucial information/evidence provided by the Applicant.

   Particulars

   a)     The Applicant's intended course of study would provide him with a better future in his home country.

   b)     At [6], the Applicant stated that he would work in administration or management in a dental hospital upon his return to Nepal.

   c)   At [9], the Applicant stated that he and his wife would move back to Nepal together.

   d)     The Applicant needed to return to Nepal to care for his parents.

   3.The Second Respondent made a decision that was irrational or unreasonable.

   Particulars

   a)     At [18], the Second Respondent accepts that the Applicant has some ongoing personal ties to Nepal.

   b)     At [10], the Applicant claims that after completing his current course, he will not undertake any more study and will return to Nepal.

   c)   However, at [20] the Second Respondent makes a finding that based upon the given amount of time the Applicant has spent in Australia; then the Applicant’s incentive is to utilise the student visa programme to reside in Australia permanently.

   4.The Second Respondent made jurisdictional error by making irrelevant considerations when relying upon the:

   i)Application for a Subclass 186 skilled visa made by the Applicant; and

   ii)Application for a protection visa made by the Applicant's wife.

Particulars

a)     At [18], the Second Respondent finds that the applications (for visas) made by the Applicant and his wife does not show that they will return to Nepal to take care of the Applicant's parents.

Ground 1

1. In relation to ground 1, the Tribunal was not required to notify the applicant as to when it intended to deliver its decision. The Tribunal was under no duty to inquire about the applicant’s completion of his course in relation to the timing of the delivery of its decision. 

2. No denial of procedural fairness is made out as alleged in ground 1.

Ground 2

1. In relation to ground 2, this, in substance reflects a disagreement with the merits. It is apparent that the Tribunal took into account the applicant’s pursuit of a course that would not advance his future, and that he commenced his study in 2008. 

2. The Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. 

3. The Tribunal expressly referred to the matters identified in the applicant’s particulars, but made an adverse finding that was open for the reasons given by the Tribunal.

4. No jurisdictional error is made out by ground 2.

Ground 3

1. Ground 3, also, in substance, reflects a disagreement with the merits. The Tribunal identified logical and rational reasons for rejecting the applicant’s claims that he would return to Nepal and was only a temporary genuine entrant. Those reasons included the time when the applicant commenced his studies in Australia, the lack of utility in the course he was pursuing, and his wife’s application for a Protection visa. 

2. The Tribunal’s finding that the applicant was not a genuine temporary entrant was logical and rational and the Tribunal’s reasons reflect an evident and intelligible justification for the adverse finding. 

3. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, the applicant’s immigration history was an identified relevant matter for consideration by the Tribunal. 

2. The applicant’s wife’s application for a Protection visa was a rational, logical and relevant matter for the Tribunal to take into account, and, falls within the scope of any other relevant matter within the statutory criteria.

3. Given that the applicant was living with his wife, the significance of the seeking of a Protection visa is patent as it reveals an intention by the applicant and his wife to stay in Australia.

4. There was no irrelevant consideration taken into account by the Tribunal. 

5. The application fails to make out any jurisdictional error. 

6. The application is dismissed. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 14 December 2020