Giri v Minister for Home Affairs

[2019] FCCA 911

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIRI v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 911

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal and a real and genuine engagement with the applicant’s claims and evidence – whether the adverse findings of the Tribunal were open to it – whether the Tribunal complied with its statutory obligations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359AA, 476, 499

Migration Regulations 1994 (Cth), cl. 500.212

Applicant: BIBEK GIRI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3493 of 2018

Judgment of: Judge Street

Hearing date: 8 April 2019

Date of Last Submission: 8 April 2019

Delivered at: Sydney

Delivered on: 8 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr C O'Sullivan
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,433.00.

DATE OF ORDER: 8 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3493 of 2018

BIBEK GIRI

Applicant

And

MINISTER FOR HOME 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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 November 2018 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of Nepal who arrived in Australia on 17 January 2009 as the holder of a Student (Class TU subclass 572) visa. On 22 September 2016, the applicant lodged the application for the visa the subject of the delegate’s decision. On 15 February 2017, the delegate refused to grant the applicant the visa. The delegate found the applicant did not meet the genuine temporary entrant criteria.

3. The applicant applied for review on 6 March 2017. By letter dated 20 March 2018, the applicant was invited to attend a hearing on 17 April 2018. The applicant appeared on that date to give evidence and present arguments.

4. The Tribunal identified a background to the visa application as well as the applicant’s background. The Tribunal expressly referred to the evidence submitted by the applicant in support of his application and in that regard made express reference to evidence demonstrating financial support and a written statement from the applicant dated 6 March 2017 and a statement for purpose, undated.

5. The Tribunal referred to the relevant law as well as referring to the Direction No. 69 that the Tribunal was required to have regard to under s 499 of the Act.

6. The Tribunal found the applicant has resided in Australia for nine years at the time of hearing by the Tribunal, and been employed in the hospitality industry as evidenced by his Statement of Employment. The Tribunal found that since the applicant’s arrival he has developed ties to Australia which would act as an incentive to remain.

7. The Tribunal considered the applicant’s claims in relation to the courses that he had completed, but was not satisfied the applicant’s career prospects will be improved by undertaking a course at a lower level since he already holds a Bachelor and a Master’s degree in relation to the human resources lower-level course. The Tribunal also found that Human Resources Management is a profession in itself and does not follow naturally from Accounting and an MBA.

8. The Authority found the applicant has not indicated an intention to find employment in human resources, even though the course he is enrolled in states it is specifically for that purpose.

9. The Authority referred to a letter of offer of employment the applicant submitted dated 8 November 2016, the time period for which the position was to commence had expired. The Tribunal was not satisfied the applicant continued to study for genuine purposes. The Tribunal placed weight on the applicant’s circumstances that indicate the student visa is intended primarily for maintaining residence in Australia.

10. It was in those circumstances that the Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal found the applicant did not meet the criteria in cl 500.212(a) of the Migration Regulations 1994 (Cth) (“the Regulations”).

11. The Tribunal was not satisfied the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212 of the Regulations and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 12 December 2018. On 21 January 2019, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of a hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table the applicant put no submissions. When reminded by the Court that the Court would not call on the first respondent to put submissions if the applicant did not put any oral submissions in support of the grounds in the application as to why he alleged the Tribunal’s decision was unlawful or unfair, the applicant referred to his application as having been prepared by a lawyer and did not want to put any submissions as to why he believed the Tribunal’s decision to be wrong.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal erred in law by not considering all the documents produced by the applicant thereby leading to miscarriage of justice.

   The applicant provided documents like statement of purpose, written statement dated 03/17, evidence demonstrating financial support etc which were never discussed or considered by the AAT in its findings or decision. This led to miscarriage of justice.

   2. The Tribunal erred in law by not providing a notice under Sec 359A or 359AA as to matters which might be the reason or part of the reason, for affirming the decision under review.

   Particulars

   The applicant was self-represented at the time of hearing before the Tribunal. The applicant filed documents and gave evidence before the Tribunal. At no point of time, during the course of hearing the Tribunal gave notice pursuant to Sec 359AA expressing concern or stating the reasons which would be the basis for affirming the decision under review and did not seek an explanation or comments from the applicant. Similarly no notice under Sec 359A was issued to the applicant subsequent to the hearing seeking any explanation or evidence on matters which would constitute the reason for the affirmation of decision under review. The Tribunal took a decision to affirm the visa refusal without issue of any notice under Sec 359A or 359AA. This approach of the Tribunal violated the provisions of law.

2. In relation to ground 1, it is apparent from the Tribunal’s reasons that there was an express reference to the statement of purpose, as well as the applicant’s written statement, and also the assertions concerning the applicant’s ability to financially support himself. The applicant’s ability to financially support himself was not an issue that required further express consideration in the context of the Tribunal’s reasons and determining whether the applicant was a genuine temporary entrant for the purpose of a student visa.

3. The proposition that the Tribunal failed to consider all the documents is inconsistent with the Tribunal’s reasons. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal gave genuine consideration to the applicant’s claims and evidence. The adverse findings by the Tribunal, as summarised above, were open to the Tribunal and cannot be said to lack an evident and intelligible justification. No relevant consideration has been identified that the Authority failed to take into account. Accordingly, ground 1 fails to make out any jurisdictional error.

4. In relation to ground 2, no information has been identified engaging the obligation under s 359A of the Act. This is a case where the delegate found the applicant was using a student visa program to circumvent temporary migrant programs and was not satisfied the applicant was a genuine applicant for entry and stay as a student. Accordingly, the issue of whether the applicant was a genuine temporary entrant was an obvious and live issue as a result of the delegate’s decision.

5. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. Insofar as the Tribunal referred to the Diploma of Human Resources Management Course Information at Canberra Business and Technology College, I accept the first respondent’s submission that even if it was information falling within s 359A of the Act, it is excluded by reason of s 359A (4)(a) of the Act.

6. There was no failure by the Tribunal to give notice under s 359A or s 359AA of the Act. No breach of any statutory provision is made out. No jurisdictional error is made out by ground 2.

7. The Court notes that the applicant’s affidavit referred to having found difficulty with some of the questions from the member. No such ground was identified in the application for review. There has been no evidence provided to support any such ground. There is no reference in the Tribunal’s reasons to support that the applicant had any difficulty at the hearing before the Tribunal, and on the face of the material before the Court, as referred to above, the Court finds the applicant in a real and meaningful hearing. The Court does not accept that there was any material difficulty with the interpreter that prevented the applicant from having a genuine hearing before the Tribunal. No jurisdictional error as alleged in the application is made out.

8. No jurisdictional error arises by reason of anything said in the applicant’s affidavit, and this is a case where the applicant put no submissions of any alleged error from the bar table. As there is no jurisdictional error on the face of the material before the Court by the Tribunal, it is appropriate to dismiss the applicant’s affidavit.

9. Accordingly, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019