Hanxhari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 300
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hanxhari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 300
File number(s): ADG 219 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 8 April 2022 Catchwords: MIGRATION - judicial review of the Tribunal’s decision to affirm the delegates refusal of a temporary student visa - where the applicant is an Italian citizen - where the Tribunal was concerned the applicant was not a genuine applicant in regard to staying in Australia temporarily - where the applicant expressed desire to continue studying in Australia - where the applicant could not demonstrate a specific passing purpose - Court satisfied application should be dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Saini v Minister for Immigration and Border Protection [2016] FCA 858; 245 FCR 238
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 8 April 2022 Place: Darwin Counsel for the Applicants: Ms Churches Solicitor for the Applicants: Jane Nunan of Jane Nunan & Associates Solicitor for the Respondents: Ms Calebrese of the Australian Government Solicitor ORDERS
ADG 219 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGLANTINA HANXHARI
First Applicant
FRANCESK GJERGJI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondents costs in the sum of $4,500.
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
Ex TemporeJUDGE YOUNG
This is an application for judicial review of the Tribunal’s decision made on 14 May 2020 affirming the delegate’s refusal of a Student (Temporary) (Class TU) visa on 26 October 2017.
By way of background, the primary applicant is an Italian citizen. The other applicant is her husband but the claims that were to be assessed were those of the first applicant, who I will refer to as the applicant. The applicant came to Australia on a tourist visa in 2017 with her husband. The delegate was not satisfied the applicant was a genuine applicant for a temporary entry and stay as a student, having regard to the matters in clause 500.212 of schedule 2 of the Migration Regulations 1994 (“the Regulations”) and the Ministerial Direction 69 (“the Direction”) of 2016 under the Migration Act 1958 (Cth). The Tribunal reached the same conclusion for much the same reasons.
Clause 500.212 requires as follows:
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
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regarding to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant, if any; and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)any other relevant matter.
The Direction, which is titled “Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications”, provides that the Tribunal is to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of the parent, legal guardian or spouse of the applicant;
·any other relevant information provided by the applicant or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the applicant.
After arriving in Australia on 17 May 2017 the applicant commenced an English language course in October 2017 but that was interrupted by the arrival of her baby. She was absent from the English language course from June 2018 to February 2019, when she resumed the course, and completed it in August 2019.
The applicant then commenced a Certificate IV qualification in Disability and Ageing Support. I should say that is the best name I can find in the materials for that Certificate IV course, as it is referred to in a very summary way in the decision, so that may or may not be the entirely accurate description of the Certificate IV course. The applicant began that course on 30 September 2019 and, at the time of the Tribunal hearing in May 2020, she was due to complete that course in October 2020, that is, after the hearing.
The applicant told the Tribunal that she had always wanted to be a nurse and intended to take up a course for a Diploma in Nursing, that is, when her Certificate IV course was completed at some future date, presumably in October 2020. The Diploma in Nursing course, which she said she wished to commence after the completion of her Certificate IV course would have taken one and a half years. She would, in Australian terms, be qualified to work as a nurse’s aide. The Tribunal, referring to the criteria in clause 500.212 of the Regulations and the Direction, with a view to assessing the value of such a course to the applicant’s future, enquired if she would be able to use that qualification in Italy. She said that, according to her internet research, she would. There was no evidence to support that claim beyond her assertion.
The applicant also told the Tribunal, apparently in response to a doubt expressed about her claim to be able to use a Diploma of Nursing in Italy, that “if she had the opportunity” to do a Bachelor of Nursing or an Advanced Diploma in Nursing, she would do so, and she believed this would enable her to work as a nurse in Italy. The applicant also relied on evidence from her lecturer in the Certificate IV course, a Ms Brooks who is a registered nurse, that the applicant was a conscientious and good student. Indeed, Ms Brooks described her as a “brilliant” student, and Ms Brooks said that the certificate IV course provided “the basics to get into nursing”. Ms Brooks said she had no knowledge of the requirements for nursing qualification in Italy.
In a post-hearing submission, the applicant’s representative provided evidence of correspondence with the Italian health authorities. That correspondence really took the matter no further because it simply said that the health authorities would assess an applicant’s qualifications and make a decision at the time. The relevant part of the material was provided, as far as I can see, on a website of the Italian authorities which said:
EU Citizens: The first step is to apply to the Italian Ministry of Health to have your professional qualifications recognised. Once your qualifications have been rated as equivalent by decree, you have to contact the competent provincial OPI since before registering, you must take an examination to ascertain your knowledge of the Italian language.
As I have said, that took the matter no further. The applicant did not provide any documentary evidence about what was described as her internet research.
The position advanced by the applicant was as follows. She sought a student visa in order to:
(a)complete a Certificate IV course in Disability and Ageing Support, which was due for completion some five months after the hearing in October 2020;
(b)commence a one-and-a-half-year course for a Diploma in Nursing, which, as the Tribunal noted and accepting what the applicant herself said about this, would appear to be a qualification for a person to work as a nurse’s aide in Australia. There was no independent or corroborative evidence that this would permit the applicant to work as the equivalent of a nurse’s aide in Italy; and
(c)“If she had the opportunity”, she would do a Bachelor of Nursing or an Advanced Diploma of Nursing, which the applicant believed would permit her to work as a nurse in Italy. Whether that would be, in fact, the case is dependent upon the material which suggested the Italian authorities would assess the qualification.
The Tribunal noted at paragraph 78 of its decision that the applicant was unable to say how much longer she wished to stay in Australia. The Tribunal also considered other matters such as her potential salary as a nurse in Italy, which would be slightly higher than in Australia, and her family connections with her extended family in Italy and Albania, friends in Adelaide and her husband who is employed as a painter in Adelaide.
The Tribunal concluded that these matters were either “not adverse” or neutral, having regard to the criteria in clause 500.212 of the Regulations and the Direction. On this basis, particularly the applicant’s inability to say how much longer she wished to stay in Australia, the Tribunal was not satisfied that she “intends genuinely to stay in Australia temporarily”.
There are two grounds with particulars.
Ground 1
The first ground is that:
The Tribunal exceeded its jurisdiction in affirming the decision of the delegate to not grant the first and second applicants a student visa on the basis that:
1. the first applicant had not provided evidence to support key parts of her application when, in fact, she had provided relevant evidence; or
2. the first applicant had provided evidence, and the Tribunal referred to no evidence to support a contrary conclusion (“the irrationality in dealing with jurisdictional facts” breach).
I will not read the entirety of the particulars but I will summarise them as best I can.
In regard to the first particular, the applicant had informed the Tribunal of her internet research on requirements in Italy and informed the Tribunal that a diploma would permit her to work as a nurse’s aide, and an advanced diploma would permit her to work as a nurse. It was said against the Tribunal that it cited no evidence to the contrary.
The second particular is that the Tribunal found the applicant had not demonstrated that advancing her proposed Diploma in Nursing to an Advanced Diploma would improve her prospects for employment in Italy. It was said that the Tribunal ignored the material put forward by the applicant that she could upgrade a Diploma in Nursing to an Advanced Diploma in Nursing in Australia which would improve her prospects of employment in Italy.
The third particular was that the Tribunal found the first applicant was unable to say how much longer she wished to stay in Australia, ignoring the fact that the length of time would depend on how her studies unfolded.
In regard to the fourth particular, the Tribunal found the first applicant could not say what she wanted to study when, in fact, she had been clear about her study pathway.
The final particular was that the Tribunal found that while there was a higher salary available for a nurse in Italy, the pre-requisites for achieving those earnings were speculative, and it was said that it was not speculative, and the applicant had provided evidence about how that might be achieved.
Ground 2
Ground 2 alleged that:
the Tribunal exceeded its jurisdiction in affirming the decision of the delegate to not grant the student visa by ignoring relevant considerations in two key aspects of the applicant’s claim (“the relevant considerations” breach).
Particulars were provided as follows, and again I will summarise.
The first particular was that the applicant’s internet researches had showed that a Diploma of Nursing would enable her to work in Italy, and the Tribunal ignored that evidence.
The second particular was that the Tribunal ignored the material put forward by the applicant as to how the Diploma of Nursing could be upgraded to an Advanced Diploma in Nursing, with resultant improved prospects.
The third particular was that the Tribunal failed in its fact-finding function by not making a finding as to whether or not the first applicant had a genuine intention to stay in Australia temporarily as a student.
Ground 2 was acknowledged by counsel for the applicant as, essentially, restating Ground 1: the assertion that the Tribunal was bound to accept the claim of the applicant that her internet researches showed that a Diploma in Nursing would enable her to work as a nurse’s aide in Italy unless the Tribunal was able to provide evidence to the contrary.
In my view, this assertion mistakes the function of an administrative tribunal in these circumstances. The task of the applicant was to bring forward information, material or evidence to enable the Tribunal to reach a state of satisfaction that the criteria were met for the grant of a visa. Where the applicant made an uncorroborated assertion about what she had seen on the internet, without providing any documentary evidence, that approach is likely to be unpersuasive.
A tribunal, in those circumstances, would be slow to accept such a central proposition when one would expect it could be substantiated by documentary evidence. That conclusion is reinforced because, as was seen in a post-hearing submission, when the applicant had the opportunity to provide further documentation the documentation that was provided was unhelpful and uninformative. In essence, the documentation said, contrary to what the applicant had said, that the Italian health authorities would assess the qualification, presumably against relevant criteria of their own. None of that was mentioned by the applicant.
In relation to the first particular of Ground 1, it was submitted by counsel for the applicant that the Tribunal was bound to accept her assertion in the absence of a finding that she lacked credibility. I do not accept that submission. It is certainly not the case in administrative decision-making, where the obligation is on an applicant to bring forward material, information or evidence that permits the decision-maker to be satisfied of the requisite matters. In this case it is hardly surprising that the applicant’s assertion that a Diploma in Nursing would provide her with the opportunity to work in an Italian hospital at the equivalent level was not accepted by the Tribunal.
In relation to the second particular, the assertion that the Tribunal failed to consider the applicant’s claim that advancing her Diploma in Nursing to an Advanced Diploma in Nursing would improve her prospects of employment in Italy is an assertion that is, in my view, factually wrong. The Tribunal referred to the applicant’s evidence about that at paragraph 37 of the decision where it said that the applicant’s representative stated that the applicant was considering doing an Advanced Diploma. The applicant’s representative said that having an Advanced Diploma would entitle her to work as a nurse rather than a nurse’s aide. The Tribunal did not ignore that material. It recorded that material and again referred to the material that was provided in the post-hearing submission, which I have referred to.
In relation to the third particular, where it was asserted that the Tribunal found that the applicant was unable to say much longer she wished to stay in Australia, that is factually correct. The Tribunal did, at paragraph 78 of the decision, conclude that the applicant was unable to say how much longer she wished to stay in Australia. Whether or not she was unable to say how much longer she wished to stay in Australia by virtue of the fact that that would depend on her success with the various courses, in my view, does not detract from the observation made by the Tribunal, for which it had a proper basis. It appears to me that that particular is simply quibbling with a conclusion reached by the Tribunal and does not, on any interpretation, even if an error, amount to a jurisdictional error.
The fourth particular said that the first applicant could not say what she wanted to study when, in fact, she was clear about her study pathway. The Tribunal’s finding about that was again set out in paragraph 78 of the decision, which I will read in its entirety:
The Tribunal has balanced the evidence and finds that the applicant started her nursing studies [this appears to be an error as the applicant was yet to complete her Certificate IV at the time of the hearing] without knowing if they would help her when she returned to Italy. Further, the applicant is unable to say how much longer she wishes to stay in Australia and what she wants to study. Importantly, the applicant cannot demonstrate what benefit further study will be to her.
Whether or not the Tribunal accurately portrayed the commencement of a Certificate IV in Disability Support as “starting her nursing studies” is perhaps not to the point. However, the applicant’s evidence to the Tribunal underlined the uncertainty about her general plans. She was part way through a Certificate IV in Disability Support, which, according to Ms Brooks, would provide the basics to get into nursing. Initially, she told the Tribunal that with the Diploma of Nursing, she would be able to take up a position of nurse’s aide in Italy but not as a fully qualified nurse. She was clearly contemplating returning to Italy, or at least she told the Tribunal that she was contemplating returning to Italy after the completion of her Diploma of Nursing.
The applicant said however, to be a fully qualified nurse, she would need a Bachelor’s Degree. She said that she did not believe it would be necessary for her to do a Bachelor’s Degree because the diploma would be enough for her to obtain work in Italy. It was at that point that the applicant’s representative intervened to say that the applicant had been considering doing an Advanced Diploma, which I take from the context of the decision, was considered to be equivalent to a Bachelor’s Degree. In any event, it was said to be a qualification that would permit her to work as a fully qualified nurse.
The characterisation offered by the Tribunal at paragraph 78 of the decision appears to me to recognise the uncertainty that the applicant herself appeared to express about her plans. At one point she sought to obtain employment in Italy with a Diploma in Nursing, and at another point she said that she would wish to do further study in Australia to obtain an Advanced Diploma or a Bachelor’s Degree, if the opportunity offered.
In relation to the final particular about the criticism of the Tribunal’s description of the applicant’s plans for achieving a nursing degree and the concomitant higher salary available to a fully trained nurse in Italy, the Tribunal’s description of that as speculative, in my view, was justified on the material before the Tribunal. It was speculative in the sense that the applicant said initially that she wished to obtain a Diploma in Nursing, which would permit her to work in Italy as a nurse’s aide. Subsequently, during the interview, she expressed an interest in obtaining an Advanced Diploma or a Bachelor’s Degree, which obviously would require further study in Australia or elsewhere. She did not appear to put that any higher than something that she would take up if the opportunity arose. In those circumstances, it appears to me that the description “speculative” was justified.
Ground 2 is largely a restatement of matters that I have dealt with, in particular Ground 1(1). I do not propose to traverse that.
The second particular of Ground 2 was that the Tribunal ignored the material put forward by the applicant about how she would upgrade her Diploma of Nursing to an Advanced Diploma with the concomitant or resultant benefits for her employment in Italy. In my view, it was not ignored and was dealt with in paragraphs 34 to 38 of the Tribunal decision. The Tribunal recorded, as I have already stated, the applicant’s initial statement that she would be able to work in Italy as a nurse’s aide or equivalent with a Diploma of Nursing but then said that she would be interested in upgrading it to an Advanced Diploma or a Bachelor’s Degree if the opportunity arose at some indeterminate time in the future.
The third particular was an allegation that the Tribunal failed to make a finding about the ultimate question or the real question set out in clause 500.212 of the Regulations. It was alleged that the Tribunal failed to find whether or not the applicant had a genuine intention to stay in Australia temporarily as a student. This is not correct on a factual level. Paragraph 79 of the Tribunal’s decision says:
On the basis of the above, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily.
The submissions of the applicant were essentially that the finding of the Tribunal was unjustified because the applicant put forward a clear proposal for a progression through various qualifications to either an Advanced Diploma of Nursing or a Bachelor of Nursing, which would permit her to earn a higher salary as a nurse than in Australia.
The question of salary is relevant to the direction which requires consideration of the value of a course to the applicant’s future, and if it were the case, as was asserted, that the course would permit the applicant to earn a higher salary in Italy or improve her circumstances, that is a factor that, in many cases, would militate in favour of the applicant intending to genuinely stay temporarily as a student.
The submission of the applicant, in my view, oversimplified the evidence of the applicant. Her evidence about her plans was uncertain. Initially, her evidence was that a Diploma in Nursing would be of assistance to her circumstances in Italy, but it was far from clear that that was the case. There was no evidence apart from her assertion and the material provided in the post-hearing submission threw into question whether that was the case.
The very uncertainty of the plans, particularly the plan to go onto further study some two or more Diploma or Degree courses after the completion of the Certificate IV involved, in my view, an obvious uncertainty about how long the applicant wished to stay in Australia. In the Federal Court decision referred to by counsel for the applicant, Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061, the Chief Justice discussed a case of some factual similarity, or at least comparable to the present case, concerning the meaning of “temporary stay” for the purposes of a student visa. Allsop CJ approved of a statement by Logan J in Saini v Minister for Immigration and Border Protection [2016] FCA 858 - 245 FCR 238 who stated:
I think that the adjective “temporary” was used to denote an absence that was both, in intention and in fact, limited to the fulfilment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for a compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of “temporary” absence that the absence will be relatively short and its duration will either be defined in advance or be related to the fulfilment of a specific, passing purpose.
In observing that the applicant did not know how long she wanted to stay in Australia, the Tribunal was, in substance, saying that it was not satisfied that the applicant’s intention was to stay for a temporary period. It was not of defined duration. I accept what the applicant says, that with a series of proposed courses it would be impossible to say what the duration of the stay would be with any great precision. I accept that as a general proposition but the fact that it is impossible to say how long the stay will be raises a question about whether it is temporary.
Similarly, the reference to the fulfilment of a specific passing purpose as an aspect of temporariness raises an obvious question when the applicant, in effect, said her purpose is to complete a Certificate IV and then to do a Diploma in Nursing; if the opportunity arose, she said she would like to do an Advanced Diploma or a Bachelor’s Degree.
That is not evidence of a specific passing purpose. It is a plan to undertake a series of purposes of unknown duration and unknown end point. In my view, that was the thrust of the Tribunal’s finding, and the finding was open to the Tribunal, having regard to those matters. The application will be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 27 April 2022
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