Ganapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 258
•12 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ganapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 258
File number(s): LNG 75 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 12 November 2021 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal made incorrect findings and denied the applicant natural justice.
Legislation: Migration Act 1958 (Cth), ss 474, 499
Migration Regulations 1994 (Cth), cl 500.212
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Butt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 26
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 25 August 2021, 9 November 2021 Place: Hobart by videolink to Sydney Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr D. Wilson, Australian Government Solicitor ORDERS
LNG 75 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJESH SHIVAPURA GANAPA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
12 NOVEMBER 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: The Court may vary or set aside a judgment or order 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 CAMERON
The applicant is a citizen of India who arrived in Australia on 27 February 2014 as the holder of a Student (Class TU) (Subclass 573) visa. On 10 August 2019 he applied to the Department of Home Affairs (“Department”) for a Student (Temporary) (Class TU) Subclass 500 visa to undertake study in Australia.
On 10 September 2019 the application was refused by a delegate (“Delegate”) of the first respondent (“Minister”) on the basis that the applicant did not satisfy the requirements of cl.500.212 of sch.2 of the Migration Regulations 1994 (Cth) (“Regulations”). On 19 September 2019 the applicant applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In this proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow the application will be dismissed.
LEGISLATION
Part 500 of sch.2 of the Regulations sets out the criteria for the grant of a subclass 500 (student) visa. At material times cl.500.212 relevantly provided:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
…
(c) of any other relevant matter.
In considering cl.500.212, the Tribunal must have regard to Ministerial Direction No. 69 (“Direction”), “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications”, made under s.499 of the Act. Part 2 of the Direction relevantly provides that:
…
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the application that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
…
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.the applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
…
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, which is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant’s immigration history
13.An applicant’s immigration history refers to both their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
…
b.Previous travels to Australia or other countries, including:
…
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
…
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
BACKGROUND FACTS
The applicant was first granted a student visa in February 2014. He was subsequently granted a Post Study Work Skill (VC 485) visa, two further student visas and associated bridging visas. While in Australia he has earned the following qualifications:
a)Masters of Information Technology;
b)Advanced Diploma of Leadership and Management; and
c)Diploma of Project Management.
The applicant’s most recent visa application, the subject of this proceeding, was made on 10 August 2019 on the basis of his enrolment in the Diploma of Project Management course and also in a Graduate Diploma of Management (Learning) Course which he was scheduled to complete in October 2021.
On 15 May 2020 the Tribunal wrote to the applicant inviting him to provide all relevant information about his course of study and his entry and stay in Australia as a student.
The applicant subsequently provided the Tribunal with various supporting documents, including:
a)a completed Request for Student Visa Information form; and
b)Overseas Student Confirmation-of-Enrolment certificates in relation to the Diploma of Project Management and Graduate Diploma of Management (Learning) courses.
The Tribunal invited the applicant to a hearing on 18 September 2020 to give evidence and present arguments, which he attended.
The Tribunal’s decision and reasons
On 23 October 2020 the Tribunal affirmed the Delegate’s decision not to grant the applicant a Student (Temporary) subclass 500 visa. The Tribunal was not persuaded that the applicant’s claims were those of a genuine temporary entrant. On that basis, the Tribunal found that the applicant did not meet cl.500.212.
The Tribunal relevantly reasoned as follows:
Applicant’s circumstances in their home country
…
19.The Tribunal is unable to accept the applicant’s reasons for not studying in India, due to the fact that the applicant has failed to demonstrate that he has undertaken any significant research into the availability of the course in his home country.
20.The Tribunal finds that the applicant’s family ties to India, in and of themselves, do not present as a significant incentive for him to return to India, when considered against his potential circumstances in Australia, in the form of his strong employment history and further demonstrated by the fact that since 2014, he has only returned home to India to visit his family three times.
21.The Tribunal finds that the applicant’s financial ties to Australia, outweigh his financial ties to India and as such, his financial ties to India do not present as an incentive to return home to Indian. [sic]
22.The Tribunal finds that the length of time the applicant has been onshore without returning home (noting that he has returned home three times 2014) is, in and of itself, indicative of an intention on the part of the applicant, to remain in Australia on a more permanent basis.
23.The Tribunal finds that the applicant’s strong working history in Australia, when considered against the fact that strong economic prospects in his home country have not been evidenced, may be a motivating factor for the applicant to remain in Australia on a more permanent basis, rather than out of a genuine desire to temporarily reside in Australia as a student.
24.The Tribunal places significant weight on the fact that the applicant has been in Australia since 2014 and has regressed academically from Master degree study to vocational level study in fields unrelated to his Masters degree, as being behaviour that is inconsistent with that of a genuine student. The Tribunal informed the applicant that his study history may be the reason or part of the reason for affirming the delegate’s decision and invited the applicant to comment or respond.
25.The applicant stated that his goal is to set up a business in India, so he did a Masters and then leadership and management. The, [sic] he wanted to be a project manager, so he is studying that now and thinks he needs more management skills and he hopes his current course will help him set up his own business.
26.While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential in view of the qualifications both at Masters level and vocational level that he already has.
…
Applicant’s potential circumstances in Australia
…
29.The Tribunal finds that the applicant has not undertaken any significant research into his proposed course, course contents, education provider or educational objectives based on the general assertions set out above, which is not behaviour consistent with an individual whose intention is to remain in Australia for the primary purpose of study.
30.Due to the nature of the course the applicant is currently undertaking, when considered against his previous study history and strong working history, the Tribunal is of the view that the applicant is enrolling in his current course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.
31.Although the Tribunal acknowledges that there is no evidence before it demonstrating the that applicant has significant community ties to Australia, the presence of college friends onshore may present as a minor incentive to the applicant to remain in Australia on a more permanent basis.
Value of the course to the applicant’s future
…
33.The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future. The Tribunal is unable to accept the applicant’s assertions as to the value of the course to his future as he has not provided any objective evidence of his understanding of the job market in India or objective research as to projected salary, demonstrating how the completion of his current course will improve his employment prospects or add value to his earning capacity, in view of the high level qualifications that he already holds.
34.… the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to academically regress in course selection to the extent that the applicant has, where it is not objectively demonstrated how that academic regression will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.
Immigration history
35.… the Tribunal is concerned by the fact that the applicant has been in Australia since 2014 and has undertaken a suite of courses which are not consistent with one another and he now seeks to undertake a further course which he has not objectively demonstrated will add value to his future.
36.The Tribunal simply does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily. Rather, the Tribunal finds that this behaviour demonstrates an intention to use the student migration program to maintain ongoing residence in Australia.
…
38. Although the applicant provided information to the Tribunal demonstrating that he has successfully completed various courses to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant alleged:
1.The applicant seeks judicial review of the decision of Administrative Review Tribunal in this matter on the grounds that the tribunal erred jurisdictionally in determining the application adversely and failed to find that I satisfied the relevant provisions of the Migration Act 1958 and Migration Regulations 1994. My application has been dealt with and decided unfairly due to the following reasons.
2.Decision of Department of Home affairs [sic] was related to the criteria of class TU 500.212. The department was not satisfied that clause 500.212 was met. The tribunal made an error and did not consider all my circumstances in relation to the visa refusal. Also, the tribunal accepts that I have family in India but did not give weight to that. This is an error made by tribunal by not considering my parents as incentive as to return to the country.
3.There has been no attempt made by tribunal to consider my genuine intention to study and remain temporarily in Australia. And why I wanted to study education course.
4.It is considered that the tribunal’s failure to at [sic] consider that my intentions are genuine towards my studies. The tribunal accepts that there are future opportunities for me in India but still does not consider my future as concrete. The tribunal did not give chance to explain and considering my situation in the above light amounts to jurisdictional error as a result, destroying the validity of Tribunal’s decision.
5.It is submitted that the Tribunal has failed to consider a potential explanation and provisions of Student visa 500 refusal. The tribunal decision is made contrary to the natural justice by not giving me due chance to present my case and evidence in support of application. Also, by not considering my previous and current behaviour towards the department, I feel that I should be given the opportunity to present my case.
Those allegations were maintained in an amended application that the applicant filed on 24 October 2021 after the Minister advised the Court at a directions hearing on 27 September 2021 that, although the Tribunal had sent the applicant written reasons for its decision dated 23 October 2020, its decision had in fact been an oral one delivered ex tempore on 18 September 2020, with the consequence that it had become apparent that this proceeding had been commenced outside the 35 day limitation period set by s.477 of the Act. The initiating application should have been filed by 23 October 2020. At the hearing of this application, the time for the bringing of the proceeding was extended to 13 November 2020, when the original application was filed.
CONSIDERATION
Ground 1
As the Minister observed in his written submissions, the first ground of the application is introductory in nature and does not plead a substantive allegation of reviewable error. It identifies no basis on which the Tribunal’s decision might be set aside.
Ground 2
The second ground of the application makes two substantive allegations. The first is that the Tribunal failed to consider all the evidence and the second is that it failed to give proper weight to the fact that the applicant had family in India and that this provided him with an incentive to return there.
The first allegation is unparticularised and lacks meaningful substance. The applicant has not identified what considerations he says were not considered and, from a review of the Tribunal’s reasons, it is not apparent that any was. It should be noted in this connection that the Tribunal expressly recorded that it considered the documents the applicant gave it as well as:
… the material before the delegate, the decision record and the applicant’s oral evidence at hearing.
The second allegation does not identify a reviewable error because it is, in substance, a disagreement with the Tribunal’s fact finding. Absent any related legal error, and none has been identified, the Tribunal’s fact finding is not reviewable in this judicial review proceeding.
Ground 3
The allegation in the third ground of the application is that the Tribunal “made no attempt” to consider either what the applicant described as his “genuine intention to study and remain temporarily in Australia” or “why [he] wanted to study education course”.
The first element of the ground is contradicted by the contents of the Tribunal’s reasons, which make it plain that the Tribunal did consider the applicant’s review application and his claims to be entitled to a student visa. This aspect of this ground is a further invitation to review the Tribunal’s fact finding as well as its ultimate decision on the merits of the review application. The Court has no jurisdiction to undertake a review of that sort.
The second element of the third ground of the application refers to an assertion which the applicant does not appear to have made at any time in the visa application and review process. His educational history in Australia has been one concerned with courses in business and management. The applicant has not pursued the discipline of education as a field of study. The Tribunal did not err by not considering a claim that was not made or did not emerge clearly from the materials before it.
If the argument is that the Graduate Diploma of Management (Learning) Course which was part of the basis of the visa application the subject of this proceeding was an “education course”, and was not considered, the evidence does not support the contention. The Tribunal said:
While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential in view of the qualifications both at Masters level and vocational level that he already has.
No reviewable error is identified by ground 3 of the application.
Grounds 4 and 5
The fourth ground of the application commences with a further invitation to undertake merits review by pleading that the Tribunal “failed to consider” the genuineness of his intentions and did “not consider [his] future as concrete”. Those contentions disclose no relevant error by the Tribunal. The fifth ground opens by alleging that the Tribunal failed to consider “a potential explanation” but it was not suggested that a claim or an integer of a claim had been left unaddressed. This allegation appears to imply that the Tribunal had a duty to give the applicant something like the benefit of the doubt, which is not the case: see Butt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 26 at [17] and [18].
The fourth ground continues by alleging that the Tribunal did not give the applicant a “chance to explain” and the fifth ground continues by alleging that the “tribunal decision is made contrary to the natural justice by not giving [the applicant] due chance to present [his] case and evidence in support of [his] application”. The applicant has argued that:
a)poor telephone reception had prevented the Tribunal from hearing all he had wanted to say concerning why he had not worked in his area of expertise since he concluded his university studies; and
b)towards the end of the hearing he had been prevented from speaking because the Tribunal commenced delivering its ex tempore decision.
In support of those allegations the applicant relied on the sound recording of the Tribunal hearing, taking the Court to two particular parts of it. However, the recording did not bear out the applicant’s concerns.
In relation to the first issue, the sound recording disclosed that although the Tribunal had encountered difficulty in hearing the applicant’s explanation for not having worked in his area of expertise, it did understand his evidence that he had tried to get such employment but had been unsuccessful. The fact that the Tribunal probably did not hear the reasons for this did not affect its decision, which did not miscarry as a consequence. In this connection, the Tribunal simply observed:
The applicant has held multiple visas during his time in Australia, during which time he has academically regressed in his studies, utilised a Temporary Graduate working visa and did not work in an area related to his fields of study and now seeks to undertake a further course.
In relation to the second issue, the recording discloses that the applicant simply stopped talking for a lengthy period, the silence being broken by only one short additional submission, following which the Tribunal announced its decision. The applicant has submitted that he
… was about to start my explanation but the member started to speak and gave out her decision. I did not interrupt her as it would be inappropriate …
but, if he had not finished, he could and should have said so to the Tribunal. The sound recording does not suggest that the Tribunal would not have let him continue, given that it introduced its formal reasons with a conversational preface. Certainly the Tribunal did not actively prevent the applicant from speaking.
For those reasons I find that the applicant has not proved that the Tribunal denied him natural justice.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 12 November 2021
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