Giri v Minister for Home Affairs
[2022] FedCFamC2G 340
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Giri v Minister for Home Affairs [2022] FedCFamC2G 340
File number(s): MLG 217 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 11 May 2022 Catchwords: MIGRATION – student visa – where applicant cancelled enrolment in a course of study and had no offer of enrolment - applicable criteria not satisfied – no error established - application dismissed. Legislation: Migration Act 1958 (Cth) ss 368D, 379A.
Migration Legislation Amendment (2016 Measures No.1) Regulations 2016.
Migration Regulations 1994 (Cth) (repealed 1 July 2016) Part 2 cl 573.222.
Cases cited: Pyaneeandee v Minister for Immigration and Border Protection [2017] FCCA 861. Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 3 May 2022 Date of hearing: 4 May 2022 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Mills Oakley
Table of Corrections 11 May 2022 In the Media Neutral Citation (MNC) the reference to the name “Prakash Giri” has been corrected to show “Giri”. 13 May 2022 In the Table on the Front Page, “Counsel for the Applicant” has been corrected to show “the Applicant”. ORDERS
MLG 217 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PRAKASH GIRI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
11 MAY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Application filed on 29 January 2018 be dismissed.
3.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $6,000.
AND THE COURT NOTES THAT:
A.These orders have been amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
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 Mansini
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (the Tribunal). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Giri a student visa.
For the reasons that follow, I have decided to dismiss the application.
CONTEXT
Mr Giri is a citizen of Nepal. Mr Giri arrived in Australia on 20 November 2008 as a holder of a Student (Subclass 572) visa. Since his arrival in Australia, Mr Giri held a series of further student and bridging visas.
On 7 September 2015, Mr Giri applied for a Student (Temporary) (Class TU) Higher Education Sector (which was taken to be an application for a Subclass 573) Visa[1] (the Student Visa) to undertake various courses of study in Australia.[2] Mr Giri submitted materials in support including education and financial documents and a statement of purpose.[3]
[1] Court Book 56 (CB).
[2] CB 1-8.
[3] CB 25-51.
On 12 August 2016, a delegate of the Minister (delegate) refused to grant Mr Giri the Student Visa. The delegate was not satisfied that Mr Giri met the criteria to be granted a student visa. Specifically, the requirement at clause 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) which required the Minister to be satisfied that Mr Giri was a genuine applicant for entry and stay as a student.[4]
[4] CB 56.
On 26 August 2016, an application was lodged with the Tribunal for review of the delegate's decision. The application named a registered migration agent as representative of Mr Giri.[5]
[5] CB 62-63.
On 31 August 2016, the Tribunal acknowledged receipt of the application for review of the delegate’s decision and provided information about the process and for multilingual applicants. That correspondence was addressed to Mr Giri’s migration agent.[6]
[6] CB 64-71.
On 19 December 2017, the Tribunal invited Mr Giri to appear before it to give evidence and present arguments relating to the issues in his case at a hearing scheduled for 23 January 2018. A copy of the Ministerial Direction No.53 and information about hearings was attached. The invitation requested all documents Mr Giri intended to rely on to establish that he met the criteria for the Student Visa be provided within 7 days including, among other specific requests: a copy of Mr Giri’s current Certificate of Enrolment (COE) and documents showing he was currently enrolled in a course or had an offer of enrolment in a registered course. The invitation described these categories of documents as required for the grant of a student visa. That correspondence was addressed to Mr Giri’s migration agent.[7]
[7] CB 72-85.
On 26 December 2017, Mr Giri’s migration agent responded to the hearing invitation. That response attached a form signed by Mr Giri dated 22 December 2017.[8]
[8] CB 86-88.
On 15 January 2018, Mr Giri’s migration agent provided submissions and documents in support to the Tribunal.[9] Those submissions informed the Tribunal that Mr Giri’s last held COE was for a Bachelor of Business (Management) with a course end date of 13 October 2019 but, after the Student Visa application was refused by the delegate on 12 August 2016, the Applicant “withdrew his enrollment of the Bachelor of Business, however he finished his studies in cookery (certificate III and IV and his diploma in hospitality) associated with his last student visa” (sic.).[10] Those submissions also stated “currently the applicant has submitted an RSMS application on May 2017 where the RCB advice satisfies and a visa application was lodged on Jun 2017.” A PRISMS record dated 8 January 2018 confirmed that Mr Giri had previously completed various courses of study but did not commence the Bachelor of Business (Management).[11]
[9] CB 95-126.
[10] CB 97.
[11] CB 91-94.
At the hearing before the Tribunal on 23 January 2018, Mr Giri provided a completed Genuine Temporary Entrant Questionnaire (Questionnaire) which stated that he did not have a current COE and gave no response to the questions about his current course of study and where he was currently enrolled. In that Questionnaire, Mr Giri stated that he had submitted a permanent visa application on 28 June 2017 (187 (RSMS) offshore).[12] In his oral evidence to the Tribunal, Mr Giri also confirmed that he was currently not enrolled in an approved course and did not hold a current COE.[13]
[12] CB 133-136.
[13] CB 150, [8].
THE TRIBUNAL’S DECISION
On 23 January 2018, the Tribunal delivered an oral decision affirming the decision under review. Mr Giri’s migration agent subsequently requested written reasons.[14]
[14] CB 144.
On 5 February 2018, the Tribunal provided a written record of its decision which was dated 1 February 2018.[15]
[15] CB 146-151.
In its oral decision, the Tribunal identified that the issue before it was whether, at the time of the Tribunal’s decision, Mr Giri met the enrolment requirements for a student visa.[16]
[16] CB 150, [6].
The Tribunal noted that, by letter dated 19 December 2017 and again at the hearing, Mr Giri was invited to provide a current COE at least 7 days before the hearing but he did not do so. Rather, Mr Giri had provided a copy of a COE which had been cancelled on 16 August 2016 and was no longer valid. Mr Giri also gave sworn evidence that he was not currently enrolled in an approved course and did not hold a current COE.[17]
[17] CB 150, [7] and [8].
The Tribunal found that there was no evidence that Mr Giri was enrolled in or had a current offer of enrolment in an applicable course of study and, therefore, the Tribunal found “the current enrolment pre-requisite for all student visa subclasses is not met”. The Tribunal also found there was no evidence of meeting the criteria for the remaining subclasses of class TU nor was the application made on the basis of being a student guardian. Accordingly, the Tribunal affirmed the delegate’s decision not to grant Mr Giri a student temporary class TU visa.[18]
[18] CB 150, [8], [9] and [12].
THE APPLICATION IN THIS COURT
Mr Giri applied to this Court on 29 January 2018. Accompanying the application was an affidavit in support which annexed the Tribunal’s outcome of the review as Mr Giri had not yet received the Tribunal’s decision in writing.
The application contains two grounds, as follows:
1.The member [Tribunal] didn’t provide me with full decision so that I can understand actually why my case failed.
2.The member [Tribunal] didn’t provide give me enough time to get extra document which I could have easily got in reasonable time for eg: COE.
A response was filed on 8 February 2018 which pleaded that the application “fails to raise an arguable case for the relief claimed”.
By orders of the Court made by consent on 14 November 2018, Mr Giri was invited to file an amended application with proper particulars of the grounds of the application, written submissions and a supplementary court book (if any) by 6 April 2022. Mr Giri did not file anything further in support of this application for review nor did he seek a further period in which to do so. The Minister filed a bundle of documents on 28 November 2018 and written submissions on 19 April 2022.
Mr Giri was unrepresented at the hearing. A Nepali interpreter was requested on the original application, and arranged by the Court, but notified of their unavailability to attend the hearing shortly prior to its commencement. Mr Giri was invited to request an adjournment but did not do so, instead giving the Court an assurance that he did not require the assistance of an interpreter and preferred to proceed with the hearing. Mr Giri made submissions on each of the issues which he sought to address. My assessment was that Mr Giri’s spoken English and comprehension was very good and I did not have cause for concern in this regard.
Ground One
At the time of making the application to this Court on 29 January 2018, the Tribunal had provided Mr Giri with an oral decision and a one-page “outcome” document which said the following in relation to the decision:
DATE OF ORAL DECISION: 23 January 2018
TIME OF ORAL DECISION: 9.54am (Vic time)
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision under review
After the application was filed on 29 January 2018 and in response to the migration agent’s request of 24 January 2018, on 5 February 2018, the Tribunal provided its “decision record” which comprised 12 paragraphs of written reasons.
During the hearing, Mr Giri acknowledged this context and his receipt of the Tribunal’s written record of reasons on or around 5 February 2018 and after he had commenced these proceedings.
Section 368D of the Migration Act 1958 (Cth) deals with oral decisions by the Tribunal and relevantly provides:
(1)A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is orally given.
…
(4)If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b)within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i)to the Secretary by one of the methods specified in section 379B; and
(ii)to the applicant by one of the methods specified in section 379A.
The methods at s.379A include by email transmission (s.379A(5(b)).
Absent written reasons at the time of filing the application, it is perhaps understandable that Mr Giri could not at that time understand why his case had failed.
However, as is apparent from the factual context, the Tribunal ultimately reduced its oral decision to writing and the written record (statement) was given to Mr Giri’s then nominated representative using a method at s.379A, within 14 days after the request, as required by s.368D(4). The written record on its face addresses each of the matters at s.368D(2)(b). Accordingly, this ground must fail.
Although Mr Giri did not put it this way, for completeness, even if there were a complaint about the brevity of reasons I consider that a fair reading of the decision record demonstrates consideration of the submissions and evidence before the Tribunal and makes findings in relation to the relevant issues. I identify no error in this regard.
Ground Two
During the hearing before this Court, I asked Mr Giri to explain to me why the Tribunal was in error. In support of his position, Mr Giri contended that he was notified of the requirement to provide a COE certificate on only very short notice and it was too late and he did whatever his agent told him to do. Mr Giri also confirmed it was correct that, at the time of the Tribunal hearing, he did not have a current COE and was not enrolled in any course.
The primary criteria for a Subclass 573 Visa at the time of Mr Giri’s original Student Visa application (lodged on 7 September 2015) were set out at Part 573 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (extracted at Annexure A to this judgment). The Regulations were subsequently amended including to repeal Part 573 of Schedule 2. However, the transitional provisions made clear that the amendments apply in relation to an application for a visa made on or after 1 July 2016.[19] The Amending Regulation, which did not have retrospective effect, operated only upon applications made from 1 July 2016 and did not apply to the present application. Accordingly, Mr Giri was required to satisfy the primary criteria at Part 573 of Schedule 2 to the Regulations.[20] At the time of its decision, the issue of whether Mr Giri held a current COE or offer of enrolment properly fell for consideration of the Tribunal in its decision on review.
[19] Migration Legislation Amendment (2016 Measures No.1) Regulations 2016 (Amending Regulation), Schedule 5, item 5404.
[20] Pyaneeandee v Minister for Immigration and Border Protection [2017] FCCA 861.
On the materials before the Court, I am satisfied that Mr Giri was on notice as to these specific requirements which he needed to meet in order to obtain the Student Visa. Mr Giri was represented by a migration agent throughout the proceedings before the Tribunal. The invitation which requested the required documents was given to Mr Giri’s migration agent some 5 weeks prior to the hearing. On its face, the invitation states that “by providing you [migration agent] with these documents, we [the Tribunal] are taken to have given the documents to the applicant”. Mr Giri did not contend that he did not receive the Tribunal’s invitation of 19 December 2017. Indeed the materials before the Court indicate that Mr Giri signed the form in response to that invitation within 3 days, on 22 December 2017, which was in turn returned by the migration agent on 26 December 2017.
The requirement that there be evidence of the COE and enrolment or an offer of enrolment was reiterated at the hearing before the Tribunal, in the presence of Mr Giri. There is no suggestion that Mr Giri requested more time to provide the relevant documents to the Tribunal or contended before the Tribunal that there was any failing on the part of his migration agent.
In any event, by his submission to the Tribunal of 15 January 2018, Mr Giri indicated his awareness of the requirements which he failed to meet. He advised the Tribunal of his “unfortunate” withdrawal of his enrolment and that he did not hold a current COE - a concession he continued to repeat in the Tribunal’s Genuine Temporary Entrant Questionnaire and orally at the Tribunal hearing.
In all of the circumstances, Mr Giri was afforded reasonable opportunity but did not provide the Tribunal with the required evidence of current COE and enrolment. It follows that the Tribunal was not in a position to reach the necessary state of satisfaction as to the enrolment requirements for the grant of the Student Visa pursuant to cl.572.223 of Schedule 2 of the Regulations.
CONCLUSION
For the above reasons, I discern no error in the approach of the Tribunal. Accordingly, the application should be dismissed with costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 11 May 2022
Annexure A
Clause 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth)(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 (1A) or (2).
(1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a) the applicant gives the Minister evidence the applicant has:
(i)a level of English language proficiency that satisfies the applicant’s eligible education provider;
(ii)educational qualifications required by the eligible education provider; 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 sufficient funds to meet:
(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2) If subclause (1A) does not apply:
(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 information 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.
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