Ghimire v Minister for Immigration & Border Protection

[2014] FCCA 1025

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHIMIRE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1025

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359A, 359C, 360
Migration Regulations 1994 (Cth), cl.570.223 to Schedule 2
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Applicant: ARCHANA GHIMIRE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3256 of 2013

Judgment of: Judge Emmett

Hearing date: 21 May 2014

Date of Last Submission: 21 May 2014

Delivered at: Sydney

Delivered on: 21 May 2014

REPRESENTATION

Solicitors for the Applicant: Mr Mel Newman
(Newman & Associates Lawyers

Solicitors for the Respondents: Ms Burnett
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3256 of 2013

ARCHANA GHIMIRE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Migration Review Tribunal dated 10 December 2013 and handed down on the same date (“the MRT”).

2. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 24 December 2013, be dismissed on the basis that the applicant has not raised an arguable case for the relief claimed.

3. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

The proceeding before this Court

1. The applicant was represented before the Court this morning by Mr Newman, solicitor.

2. The applicant failed to appear at the first court date directions hearing before me on 15 April 2014.

3. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, by 12 May 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 12 May 2014.

4. On application by the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Rules.

5. The applicant’s application for judicial review, filed on 24 December 2013, stated the ground of review as follows:

   “1. The applicant applied for a Student (Temporary) (Class TU) on 9 July 2012 which was refused apparently under clause 572.223 of the Regulations. The applicant appealed to the Tribunal but in finding that she was not a genuine student, the Tribunal misread her statement or that from PRISM (it is not clear at this stage) that she had, during the period of her studies, enrolled not for nineteen courses as the Tribunal claimed, but that she had undertaken 19 subjects or units in three courses – caused partly by the collapse of Meridian College. In so doing the Tribunal erred in its jurisdiction in that it completely misconceived the applicant’s claim – that she was a genuine student and was thus entitled to a student visa – by making an erroneous finding or reaching a mistaken conclusion, such that its’ exercise or purported exercise of power was thereby affected, causing it to exceed its authority or powers.”

6. On 14 May 2014, the applicant filed submissions in response to the first respondent’s show cause application in the following terms:

   “1. There is no Court Book. Once one is made available, it will shew [sic] that the applicant attended Meridian International Hotel School and paid for a diploma of cookery course in advance. The college collapsed and her advance fees were lost and as a result she had to re-jig and attend other courses elsewhere. For this reason it superficially appeared that she was capricious and chopped and changed her courses and was not serious about her studied. She paid $70K to that institution and but has nothing to show for it despite establishing an entitlement to Certificates in the various course subjects. Rather than take pity on the student she was condemned because she undertook replacement courses.

   2. In fact so unreasonable was the Tribunal’s approach that it offended against the strictures laid down in and what has become known as Wednesbury unreasonableness and its abandonment of fairness required of tribunals under s.353 of the Migration Act 1958. The Chief Justice held that the concept of unreasonableness:

   “reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusion [sic] about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

   2. The Tribunal took issue with non-attendance after the collapse of the college – see attached extract from the internet. She had problems it seems readjusting but after such a calamity no wonder. She said that she panicked. These matters although published in the decision were effectively ignored. She does not explain the tribunal stresses why she did not transfer to other courses after the college’s collapse but she did explain – she panicked.

   3. The Minister’s show cause application is misconceived.”

7. I accept as accurate the first respondent’s summary of the MRT’s decision, as follows:

   “7. At the time of application, the Visa contained a number of subclasses. Having regard to the applicant's proposed course of study, the relevant subclass is Subclass 572, the criteria for which are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

   8. The critical criterion in the present case is cl.572.223(1), which relevantly states:

   "The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)     the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant's circumstances;

   (ii)    the applicant's immigration history; and

   …

   (iv)   any other relevant matter;

   … "

   9. Clause 572.223 is a time of decision criterion. In considering whether it is satisfied, the Tribunal was required to have regard to Ministerial Direction No. 53, made under s.499 of the Migration Act 1958 (Cth) (Act). The Direction states that it is not to be used as a checklist, but rather as a guide for weighing up an applicant's circumstances as a whole. The Direction required the Tribunal to consider a number of factors, including, the value of the course being undertaken to the applicant's future and any other matter that may be relevant. Significantly, the Direction provides for the consideration of the applicant's immigration history, including:

   "…the amount of time the applicant has spent in Australia and whether the Student 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."[1] (emphasis added)

   [1] Direction at 14(b)(iii).

   On 21 November 2013[2], the Tribunal wrote to the applicant, pursuant to s.359A of the Act and put the following matters to the applicant:[3]

   [2] The Tribunal Decision states that this letter was sent on 18 November 2013.

   [3] Quoted at DR 11.

   "…

   In your visa application you provided details of Confirmation of Enrolments (CoEs) for courses in: Certificate III in Business Administration, from 14 January 2013 to 13 October 2013; Certificate IV in Small Business , from 14 October 2013 to 13 July 2013; and Diploma of Marketing, from 14 July 2013 to 11 January 2014.

   Electronic (PRISMS) records before the Tribunal indicate that:

   - All three of these enrolments were cancelled on 27 July 2013 for non-commencement of studies.

   -You are currently studying a course in Diploma of Business, from 4 November 2013 to 4 May 2014.

   - Since you first arrived in Australia on 16 September 2008, you have been enrolled in a total of 19 courses. Of these enrolments, 14 are shown as having been cancelled and only 3 are shown as having been finished.

   - A significant number of your enrolments have been for short and inexpensive courses, and they have involved unrelated fields of study.

   The above information is relevant to the review because it might lead the Tribunal to conclude that you do not satisfy clause 572.223(1) as you are not a genuine applicant for entry and stay in Australia as a student; further, the information might lead the Tribunal to conclude that you do not satisfy clause 572.223(1)(a) as the Tribunal might conclude that you do not intend genuinely to stay in Australia temporarily.

   …"

   The Tribunal gave the applicant until 5 December 2013 to comment on these matters. The applicant responded on 6 December 2013.  As the applicant responded outside of the prescribed period, the applicant lost her entitlement to a hearing before the Tribunal, pursuant to sections 359C and 360(3) of the Act.[4]

   The Tribunal proceeded to make its decision on the matters set out in its 18 November 2013 letter. However, the Tribunal took into consideration the applicant's response received by letter dated 6 December 2013. The applicant's response did not contradict the Tribunal's statement that she had undertaken 19 courses. In summary, in the response, the applicant stated that she was affected by the closure of Meridian International Hotel School, leaving her course incomplete. Furthermore, she was prevented from completing other courses in which she was enrolled by the 'unfavourable' circumstances of her father. The applicant did not explain why she did not transfer to another course after Meridian closed. Nor did she explain the 'unfavourable circumstances' of her father, nor why she had undertaken disparate fields of study in her enrolments.

   On 10 December 2013, on the basis of the above reasons, the Tribunal affirmed the Delegate's decision. The Tribunal found that, having regard to the applicant's circumstances as a whole in accordance with the Direction, it was not satisfied the she intended genuinely to stay in Australia temporarily, and so did not satisfy c.572.223(1).[5]”

   [4] See Hasran v Minister [2010] FCAFC 40 at [25] to [32].

   [5] Decision Record (DR) 18.

8. Mr Newman read an affidavit of himself sworn 24 January 2013 and annexing a copy of the MRT’s decision record. At the heart of Mr Newman’s submissions was a submission that findings of the MRT that the applicant had enrolled in 19 courses and that the courses in which he had enrolled were disparate, were not open to the MRT on the evidence and material before it and were not findings that any reasonable decision-maker could make. 

9. Subclause 570.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) imposed on the applicant a requirement in relation to her visa that she be a genuine applicant for entry and stay as a student. Subclause 570.223 is as follows:

   “(1)  The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)  the Minister is satisfied that 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

   (b)  the applicant meets the requirements of subclause

   
   

   (2).

   (2)  An applicant meets the requirements of this subclause if:

   (a)  the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)  the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)  any other relevant matter; and

   (c)  the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity.”

10. The MRT referred to a Ministerial Direction Number 53, made under s.499 of the Act, stating the factors to which the MRT is required to have regard, including as follows at para 14(b)(iii):

    "…the amount of time the applicant has spent in Australia and whether the Student 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.”

11. The MRT acknowledged that the Direction indicated that the factors specified should not be used as a checklist, but rather are intended to guide decision-makers to weigh up the applicant’s circumstances as a whole. 

12. On 18 November 2013, the MRT wrote to the applicant through her registered migration agent, pursuant to s.359A of the Act, in the following terms:

    “In your visa application you provided details of Confirmation of Enrolments (CoEs) for courses in: Certificate III in Business Administration, from 14 January 2013 to 13 October 2013; Certificate IV in Small Business , from 14 October 2013 to 13 July 2013; and Diploma of Marketing, from 14 July 2013 to 11 January 2014.

    Electronic (PRISMS) records before the Tribunal indicate that:

    - All three of these enrolments were cancelled on 27 July 2013 for non-commencement of studies.

    -You are currently studying a course in Diploma of Business, from 4 November 2013 to 4 May 2014.

    - Since you first arrived in Australia on 16 September 2008, you have been enrolled in a total of 19 courses. Of these enrolments, 14 are shown as having been cancelled and only 3 are shown as having been finished.

    - A significant number of your enrolments have been for short and inexpensive courses, and they have involved unrelated fields of study.

    The above information is relevant to the review because it might lead the Tribunal to conclude that you do not satisfy clause 572.223(1) as you are not a genuine applicant for entry and stay in Australia as a student; further, the information might lead the Tribunal to conclude that you do not satisfy clause 572.223(1)(a) as the Tribunal might conclude that you do not intend genuinely to stay in Australia temporarily.

    …”

13. The applicant failed to respond to the MRT’s letter within the specified timeframe, however, she did respond on 6 December 2013, stating that she was affected by the closure of Meridian International Hotel School, leaving her course incomplete. Furthermore, the applicant stated that she was prevented from completing other courses in which she was enrolled by the 'unfavourable' circumstances of her father. in the following terms:

14. The MRT noted that the applicant did not seek an extension of time in which to respond to the MRT’s letter. In the circumstances, the MRT exercised its discretion pursuant to ss.359C and 360(3) of the Act to proceed to make its decision on the information available to it.

15. The MRT then summarised the concerns that it had written in its letter, including that she had enrolled in a total of 19 courses of study since arriving in Australia in September 2008, of which 14 had been cancelled and only three completed. Also, that a significant number of her courses had been for short and inexpensive courses and had covered a number of unrelated fields of study. 

16. The MRT summarised the applicant’s response and noted that she had not provided any information as to why she was prevented from completing her course because of her father’s circumstances; and, that she did not provide any other explanation for the unfavourable aspects of her academic performance or for the disparate fields of study her enrolment had covered. 

17. The MRT referred to its letter sent pursuant to s.359A of the Act, explaining to the applicant that the matters of concern it had identified indicated that she could not satisfy cl.572.223(1) to Schedule 2 of the Regulations as she was not a genuine applicant for entry and stay in Australia as a student. Also, that as she did not satisfy cl.572.223(1)(a) to Schedule 2 of the Regulations, the MRT might conclude that she did not genuinely intend to stay in Australia temporarily. The MRT noted that it had considered the applicant’s circumstances, academic history and other matters it considered relevant, and was not satisfied that the applicant genuinely intended to stay in Australia temporarily. Ultimately, the MRT found that the applicant did not meet cl.572.223(1)(a) to Schedule 2 of the Regulations.

18. The MRT further found that there was no material before it to suggest that the applicant met prescribed criteria for any other subclass. Accordingly, the MRT affirmed the decision under review to cancel the applicant’s visa. 

19. As stated above, Mr Newman referred particularly to the MRT’s finding that the applicant had enrolled in 19 courses. Mr Newman submitted that in fact these were 19 subjects and that the three courses in which she had enrolled were not unrelated. 

20. The applicant had an opportunity to take up those matters as they were specifically referred to in the letter pursuant to s.359A from the MRT. The applicant declined to do so. In the circumstances, there is nothing on the face of the MRT’s decision record to suggest that its finding were not open to it on the evidence and material before it and for the reasons it gave. The submission by Mr Newman that the MRT’s findings were affected by Wednesbury unreasonableness has no, or no reasonable, prospects of success.

21. Accordingly, I’m not satisfied that the application raises an arguable case for the relief claimed and the proceeding before this court commenced by way of application, filed on 24 December 2013, should be dismissed pursuant to r.44.12 of the Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  28 May 2014