GAJUREL v Minister for Immigration

[2019] FCCA 2606

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAJUREL v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2606

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a class TU Subclass 500 (Student) visa – whether the Tribunal mistakenly took into account irrelevant considerations – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal made a decision that was irrational or illogical – whether the Tribunal breached s 360 of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 359, 359A, 359AA

Migration regulations 1994 (Cth), cl.500.212

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural Affairs and

 Indigenous Affairs (2003) 236 FCR 593

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration v Eshetu (1999) 197 CLR 611

Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

(2006) 228 CLR 152

SZBYR v Minister of Immigration and Citizenship (2007) 235 ALR 609

Applicant: ARBIN GAJUREL

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1855 of 2018

Judgment of: Judge Humphreys

Hearing date: 16 September 2019

Date of Last Submission: 16 September 2019

Delivered at: Sydney

Delivered on: 16 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Kumar

Solicitors for the Applicant: Residency Legal

Counsel for the Respondents: Ms Hooper

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $5,930.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1855 of 2018

ARBIN GAJUREL

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

(As corrected)

Introduction

1. The applicant is a citizen of Nepal and is approximately 25 years old. The applicant came to Australia on 20 June 2013 as the holder of a Student (Class TU subclass 573) visa.

2. On 29 August 2016 the applicant applied for a Class TU Subclass 500 (Student) visa. A delegate of the Minister refused the application on 20 October 2016. The applicant sought merits review with the Administrative Appeals Tribunal (‘the Tribunal”). In a decision dated 13 June 2018, the Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal decision in this Court.

The Administrative Appeals Tribunal’s Decision

1. At paragraph 3, the Tribunal noted that the delegate refused the application for a two year Subclass 500 (Student) visa on the basis that the applicant did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) as he did not meet the criteria of a Genuine Temporary Entrant for study.

2. At paragraph 5, the delegate was noted to have refused the visa for the following grounds:

   ·   The applicant was excluded from his Bachelor of Business course for non-payment of fees, in breach of condition 8516;

   ·   The applicant’s proposed Bachelor of Professional Accounting involved significant cost and the delegate was not satisfied the applicant would maintain enrolment;

   ·   The applicant did not provide evidence of employment prospects in his own country or specific plans for future employment;

   ·   Generic reasons were provided regarding the benefits of the qualification;

   ·   The delegate was not satisfied the applicant would comply with visa conditions in future.

3. At paragraph 6 to 7 of the Tribunal’s decision, it is noted that the applicant appeared before the Tribunal and gave evidence, assisted by a registered migration agent.

4. At paragraph 8, the evidence of the applicant is set out. The applicant is currently enrolled at the Holmes Institute in a Bachelor of Professional Accounting. The course started in August of 2016 and the applicant has completed six units over three semesters, with a gap due to health reasons. The applicant has not passed any subjects, but still expects to complete the course in March 2019. It was noted, by the Tribunal, that the applicant has, in fact, completed the Diploma of Accountancy.

5. At paragraph 10, the Tribunal noted that the applicant was not currently enrolled, according to the PRISM record, in any course. The applicant said he had tried to enrol last semester but was told to come back next semester. The applicant had studied until July 2017 but ceased due to ill-health. The applicant admitted that he had been seven days late in seeking a deferment and was unable to enrol in until the next semester.

6. At paragraph 11 of the Tribunal’s decision, regarding the non-payment of fees, the applicant referred to an earthquake that occurred in Nepal in 2015 and that he had had trouble in obtaining funds for his education from his parents. The applicant was depressed about the situation.

7. At paragraph 12 of the Tribunal’s decision, it was noted his parents and one sister reside in Nepal but he has two sisters in Australia. The applicant is supported by his parents and one of the sisters who resides in Australia. It was noted that the applicant also works as a part-time manager at Woolworths.

8. At paragraph 13 of the Tribunal’s decision, it was noted that the applicant had not returned to Nepal since arriving in Australia. The applicant had also recently married and his wife is also studying in Australia.

9. Paragraphs 16 to 19 of the Tribunal’s decision set out the relevant law and policy considerations, including Direction Number 69, from the Minister, which concerns the criteria that is to be considered and applied by decision makers in relation to student entry.

10. At paragraph 21, the Tribunal found that the applicant has two married sisters in Australia, one of whom supports him and that he has worked as a supermarket manager. The Tribunal considered these factors together along with the time the applicant has already spent in Australia, to be incentives to continue to remain in Australia for reasons other than for study.

11. At paragraph 22, the Tribunal was not satisfied that the University of Technology, Sydney (UTS) had refused to enrol him for non-payment of fees only. The applicant was advised by UTS that he did not meet both the Genuine Temporary Entrant criteria and UTS’ enrolment requirements.

12. At paragraph 23, the Tribunal considered various medical evidence provided. The Tribunal was not satisfied, based on the applicant’s past history that he would, in fact, be able to maintain enrolment and succeed academically if he were allowed to stay.

13. At paragraph 24, the Tribunal noted the courses that the applicant had completed to date, but considered his progress to be unsatisfactory considering his five years in Australia. As regards to future plans, the Tribunal noted that the applicant was only able to give general information and had no defined plans for return to Nepal.

14. Accordingly, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and that he did not meet the cl 500.212 requirements.

Grounds of Appeal

1. Eight grounds of appeal were set out in an amended application that was filed in this Court on 22 August. Surprisingly, notwithstanding the late filing of that application, Grounds 5 and 6 were not pressed here today and part of Ground 4 was abandoned during the course of the hearing.

Applicant’s Submissions

Ground 1

1. Counsel for the applicant submitted that at paragraph 23, the Tribunal found that the applicant’s “lack of academic progress was due to focusing on work as a supermarket manager.” It was noted that the applicant had only ever worked part time. Counsel for the applicant submitted that if the applicant’s part-time employment was a dispositive issue on which the Tribunal decision would turn, the applicant should have been appraised that it was a live issue. Counsel referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at paragraphs [34] to [36] and [44]. Counsel submitted that the Tribunal breached s 360 of the Migration Act 1958 (Cth) (“the Act”) by failing to draw to the applicant’s attention to the fact that his employment was a significant issue under review.

Ground 2

1. Ground 2 asserts that there was a failure by the Tribunal in that they did not take account of a relevant consideration by failing to consider the applicant’s ill-health as a reason for lack of academic progress and a reason for the gap in his studies. The written submissions by the applicant appear to suggest that the decision is illogical, irrational, and unreasonable as it failed to take account of filial obligations to his parents or to manage properties as an incentive to return to Nepal.

Ground 3

1. Ground 3 asserts that the Tribunal deprived the applicant of procedural fairness under s 359 and s 359AA of the Act by finding the applicant had no defined plans of returning to Nepal and not giving the applicant the opportunity to comment on that. Further, it is submitted that the Tribunal concluded that, based on a past history, the applicant would be unable to maintain enrolment, despite a plea to the contrary, that the lack of his progress was due to ill-health.

Ground 4

1. It was submitted that there were a combination of factors that contributed to the state of affairs when the matter was before the Tribunal. While addressing the issue of whether the applicant was a Genuine Temporary Entrant, it was submitted by the applicant that the Tribunal conflated this with the issue of ill-health and failed to make clear findings as to the effect of the ill-health on his genuineness as a student. There was no finding as to the contribution of the applicant’s ill-health. Counsel for the applicant submitted that the Tribunal failed to realistically engage with how the ill-health was relevant to the genuineness of his study (whether considering that medical certificates were not genuine or ill-health would continue.) It was suggested the Tribunal applied the incorrect test and asked incorrect questions or failed to ask the correct questions and/or misconstrued the requirements for Genuine Temporary Entrant. It was submitted, finally, that the Tribunal’s decision was unreasonable, irrational or illogical.

Grounds 5 and 6

1. Grounds 5 and 6 were not pressed.

Ground 7

1. Ground 7 asserted that the Tribunal denied the applicant procedural fairness and failed to give him the opportunity to address the issue of his future plans. The Tribunal treated this as dispositive, whereas it was not before the delegate. It was submitted that the applicant gave evidence as to why he wanted to finish his Bachelor of Business and the Tribunal did not provide reasons as to why it would not enhance his career.

Ground 8

1. The Tribunal was not satisfied that the University of Technology, Sydney failed to enrol the applicant solely on the basis of unpaid fees. The applicant was not asked about other reasons. It is submitted that the Tribunal should have written to the applicant seeking an explanation, and in failing to do so doing breached s 359A and s 359AA of the Act, being a situation where information should have been put to the applicant that actually formed part of the decision.

The First Respondent’s Submissions

1. Again, the first respondent noted that a third application was filed on 2 September 2019. It is also noted that the applicant sought to rely upon grounds advanced here today in oral submissions which were not contained within the written submissions. I am grateful that counsel for the first respondent was able to respond to those and it was not necessary for an adjournment to be granted.

Grounds 1 and 2

1. The first respondent noted that the applicant does not identify considerations that are either irrelevant or failed to be taken into account. Rather, the applicant identifies a finding which they disagree with. It is up to the applicant to identify the considerations which should have been taken into account and were not, and reliance is placed on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at paragraphs [39]-[40].

2. It was submitted on behalf of the first respondent that there was no breach of s 360 of the Act. The applicant gave evidence as to his work before the Tribunal. The Tribunal was not required to give a commentary to the applicant as to its appraisal of his own evidence. See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 166 at paragraph [48] (“SZBEL”).

3. This ground of review does not identify a dispositive issue which the applicant was not invited to give evidence and present argument. Medical evidence and the applicant’s ill-health were considered as well as his reasons for seeking a deferment. The applicant’s evidence as to future plans in Nepal were considered. Counsel for the first respondent submitted that it is not necessary for the Tribunal to refer to every item of evidence in its decision and accordingly, no error of law is apparent.

Ground 3

1. In relation to Ground 3, the first respondent submitted that the ground of appeal as articulated, does not identify the information giving rise to the obligation under s 359A(1) and reference was made to SZBYR v Minister of Immigration and Citizenship (2007) 235 ALR 609 at paragraph [18].

2. Ground 4 alleges an illogical or irrational decision. It was noted during the course of the argument, that the applicant withdrew the suggestion that ill-health was not considered and it was partially withdrawn. Counsel on behalf of the first respondent submitted that the ground does nothing more than register an emphatic disagreement with the Tribunal’s decision and invites impermissible merits review (see Minister for Immigration v Eshetu (1999) 197 CLR 611).

Ground 7

1. Ground 7 alleges a breach of s 360 of the Act and the first respondent relied upon the submissions in relation to Grounds 1 and 2 above.

Ground 8

1. In relation to Ground 8, the first respondent submitted that it was open to the Tribunal to take issue with what the various requirements were and that it did not conflate the requirements for enrolment by UTS with their requirements under the Migration Act. Reference was made to Ministerial Direction 69 and that there was no failure to properly reflect the law. Counsel for the first respondent submitted that the applicant was clearly on notice as to the matters that were relevant and a fair and plain reading shows that the Tribunal applied the law under the Migration Act.

Consideration

1. The applicant has been in Australia since 2013. As at June 2018, he had only completed the Diploma in Accounting. The applicant was not, according to PRISM records at the time of the Tribunal decision, enrolled in any course of study. During the Tribunal hearing the applicant had the opportunity to give evidence and present argument. The applicant was granted a further opportunity to provide additional written material and present post-hearing. It is noted that the applicant had also provided evidence that he had enrolled in a course at the Holmes Institute.

2. The applicant now relies only on six grounds, having abandoned two grounds filed in the third application. Again, I simply make it clear that it is puzzling that if the additional application was filed on 21 August, why it was by 2 September that two grounds had been abandoned. It does not speak well of the preparation and consideration of the matter.

Grounds 1 and 2

1. In my view, the applicant has failed to identify the consideration the Tribunal was bound to take account of or should have considered. I accept the first respondent’s submission that the Tribunal was not required to give a running commentary as to its views of the applicant’s evidence (see SZBEL).

2. The Tribunal clearly considered the applicant’s ill-health, the reasons for his study gaps and his future plans in Nepal. These were all relevant considerations. I am satisfied that the applicant was clearly on notice from the delegate’s decision as to what matters were in dispute. I am not satisfied that s 360 of the Act was breached. The suggestion that the decision is illogical, irrational or unreasonable because it failed to take account of the applicant’s filial obligations in Nepal cannot be sustained. That material was before the Tribunal. As I said, it is not necessary for the Tribunal to refer to every item of evidence (see Applicant WAEE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2003) 236 FCR 593 at paragraph [46]).

3. In my view, this ground invites merits review. I also note that in terms of unreasonableness, I am not satisfied that the decision of the Tribunal meets the stringent test, that arises in only rare circumstances, for a decision to be found to be legally unreasonable.

Ground 3

1. I am not satisfied that there is any information identified that gives rise to an obligation under s 359A(1) of the Act. Again, the Tribunal is under no obligation to give the applicant an appraisal of its views on the evidence that he gave to enable the Tribunal to rebut these views. The Tribunal was reasonably entitled to take account of the applicant’s past history when considering his stated future intentions, particularly given it was considering whether the applicant was a Genuine Temporary Entrant, and I emphasise the word temporary, to Australia who would return to Nepal following the completion of his study.

Ground 4

1. Ground 4 makes a series of allegations, one of which was abandoned, of failing to ask the correct question, failing to make clear findings or realistically engaging with the issues, misconstruing requirements and/or is illogical or irrational in its findings. That is a plethora of submissions and indeed it would be much better if the submission was clearer. I am satisfied that Ground 4 is, in reality, an expression of dissatisfaction with the outcome of the Tribunal hearing. I am satisfied that the Tribunal clearly considered all of the available evidence, gave it weight and came to a conclusion that the applicant was unhappy with. I am satisfied that the findings were open to the Tribunal based on the evidence that was before it. Therefore, Ground 4 is not sustainable.

Ground 7

1. The Tribunal was not required to advise the applicant of any concerns it had regarding his evidence to allow him the chance to provide further material to do with its concerns. There was no breach of s 360 of the Act, in my view. The fact that the Tribunal treated the issue differently to the delegate is irrelevant as it was conducting a merits review. It is entitled to different conclusions and to give different weight to the evidence before it. The Tribunal came to the conclusion that the applicant was not a Genuine Temporary Entrant, for the purposes of study, based on all of the evidence. There was no requirement for the Tribunal to answer each of the assertions of the applicant in detail in its decision. It was entitled to come to an overall view based on the totality of the evidence.

Ground 8

1. I am not satisfied that there is any breach of procedural fairness. I am satisfied that the applicant was given ample opportunity, both in the hearing and by way of an opportunity to give post-hearing submissions, as to any material that he wished to put to the Tribunal. I am satisfied that the Tribunal did not misconstrue the requirements that UTS put on the applicant with the requirements under the Migration Act. I am satisfied that the Tribunal applied the criteria under the Regulations, including Direction 69, and did not purport to apply some other test. The Tribunal made a finding that was clearly open to it.

1. The delegate’s decision plainly identified issues and the Tribunal traversed them during the course of the hearing and gave the applicant the opportunity to deal with them, both at the hearing and post-hearing. I am convinced that the finding was open to the Tribunal and that the issues that were raised are such that the applicant has not discharged his onus of proof. It is for the applicant to present the material he wished to rely upon to show he met the requirements of being a Genuine Temporary Entrant. See Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at paragraph [4].

Conclusion

1. I find that none of the grounds of appeal that have been relied upon give rise to jurisdictional error and I dismiss the application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 30 October 2019

Correction (19 November 2019)

1. File Number changed from SYG 1855 of 2008 to SYG 1855 of 2018.