KANDEL v Minister for Immigration

[2020] FCCA 2970

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANDEL & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2970

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Student (Temporary) (Class TU) (subclass 500) visa – whether finding that applicant did not satisfy reg.500.212(a) was affected by jurisdictional error

Legislation:

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

Migration Regulations 1994 (Cth) reg.500.212(a) of Schedule 2

First Applicant: SHIBA KALA SAPKOTA KANDEL

Second Applicant: TEK NATH KANDEL

Third Applicant: HIMANI KANDEL

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 57 of 2020

Judgment of: Judge Jarrett

Hearing date: 15 October 2020

Date of Last Submission: 15 October 2020

Delivered at: Brisbane

Delivered on: 3 November 2020

REPRESENTATION

The Applicants appeared in person

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 31 January, 2020 be dismissed.

2. The first and second applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,464.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 57 of 2020

SHIBA KALA SAPKOTA KANDEL

First Applicant

TEK NATH KANDEL

Second Applicant

HIMANI KANDEL

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of the second respondent made on 8 January, 2020 by which it affirmed a decision not to grant the first applicant a Student (Temporary) (Class TU) (subclass 500) visa.  The visa applications made by the second and third applicants as part of the first applicant’s family unit were, consequently, also refused.

2. The first respondent opposes the application and the second respondent has entered a submitting appearance.

3. The Court directed that each of the parties file and to serve written submissions and a list of authorities.  However, the applicants have filed no written submissions as directed.  Nor have they taken the opportunity to amend their application to better particularise the grounds of review. 

4. I have the benefit of written submissions from the first respondent.

5. In general terms, the issue in these proceedings is whether the second respondent fell into jurisdictional error when it determined that the first applicant did not meet one of the conditions necessary for the grant of the visa, namely cl.500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

6. When the matter came for hearing before me, the first applicant appeared for the second and third applicants.  An interpreter was available for her assistance.  The second and third applicants did not seek to make submissions separately to the first applicant.  At the conclusion of the hearing when I called upon the first applicant to make any submissions that she wished to make with respect to the question of costs, she made a submission which could reasonably be construed as an application for an adjournment.  She sought a “second hearing” so that she could get legal representation.  She said that she had a lawyer in Melbourne who could appear for her.  However, I refused the adjournment.  No basis appeared from the material before me for the making of an adjournment.  None had been sought at the commencement of the proceedings.  There was no evidence before me that the applicant had in fact secured legal representation or was likely to do so.  Further, the application for the adjournment was made at the conclusion of the hearing after the applicant had made all of the submissions that she had wished to make.

Background

1. The first applicant is a Nepalese citizen who first arrived in Australia on 13 May, 2007. The second applicant is the first applicant’s spouse. The third applicant is their daughter.

2. The applicants applied for the visas the subject of these proceedings on 29 January, 2018.  Prior to her current visa application, the applicant had been granted eight student visas.

3. On 4 June, 2018 the first respondent’s delegate refused to grant the applicants the visas on the basis that the first applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations because the delegate was not satisfied that the first applicant intended genuinely to stay in Australia temporarily.

4. On 22 June, 2019 the first applicant applied for review of the delegate’s decision and appeared before the second respondent on 3 October, 2019 to give evidence and present arguments.  The applicants were assisted in the review by their registered migration agent.

5. On 8 January, 2020 the second respondent affirmed the decision under review.  The second respondent’s reasons for affirming the decision under review are set out in its decision record.  In its decision record, the second respondent:

   a)set out the terms of cl.500.212 of the Regulations;

   b)addressed itself to the question raised by that regulation, namely whether the first applicant intended genuinely to stay in Australia temporarily;

   c)in addressing that question, recorded that it must have regard to Direction No.69 Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications made under s.499 of the Migration Act 1958 (Cth);

   d)noted four matters to which it needed to pay regard having regard to the Direction;

   e)noted that the Direction was not to be used as a checklist but was intended to be a guide to decision-makers when considering an applicant’s circumstances as a whole when reaching a finding about whether an applicant satisfied the relevant genuine temporary entrant criterion;

   f)recorded that it had regard to all the information supplied to the first respondent’s Department with the visa application and all the information supplied to the second respondent by the applicants, including written and oral evidence and submissions;

   g)noted that it had certain information not provided to it by the applicants, and in particular printouts from the Provider Registration and International Student Management System (“PRISM”) and the first respondent’s departmental movement records.  The second respondent noted that the information provided to it by the first respondent’s Department in this respect was the same as the information and so the second respondent preferred to rely upon the applicant’s evidence about these matters, although gave copies of the material to the first applicant for the purposes of considering it and providing any comment that the first applicant wished to make about it; and

   h)accurately summarised the first applicant’s circumstances, including her stated intention to open a health clinic in a remote area of Nepal to provide health care and support to the population in that area including aged citizens.  The second respondent recorded that the first applicant intended to seek funding support from various agencies including government, non-government and international organisations operating in Nepal.

6. The decision record sets out that the second respondent put to the applicant a number of concerns that it had in respect of the first applicant’s circumstances and evidence.  It raised with the first applicant the issue that she already had registered nursing qualifications in Nepal and questioned the necessity for her to have studied a Diploma of Nursing and a Bachelor of Nursing in Australia.  The second respondent recorded the applicant’s response to its concern.

7. Another matter raised by the second respondent with the first applicant was her statement accompanying her visa application in which she stated that she only wished to study a Certificate IV in Marketing and Communication, after which she was keen to return to Nepal.  The second respondent noted that the first applicant now suggested that she needed to study a Diploma of Marketing and Communications as well.  The second respondent recorded the applicant’s response to the second respondent’s concerns about that issue and noted a further matter that arose out of her response, namely, that based on her existing studies (Diploma of Management (Human Resources), Advanced Diploma of Accounting and Certificate IV in Marketing and Communication) she was more than well-equipped to communicate with government, non-government and international organisations to seek funding for the clinic that she proposed to open.  The second respondent read out to the first applicant from the various records of completion of her courses provided by the first applicant, all of the various competencies going to those particular skills.  The second respondent recorded the first applicant’s response to its concerns as being simply that she required more advanced skills to be able to deal with government, non-government and international organisations operating in Nepal.  The second respondent then sought:

   …to elicit exactly what subjects the applicant needed to study to take her from the level of where apparently with all of her existing studies she would not be competent to deal with those international type organisations but if she completed the 12 units in the Advanced Diploma she would be so qualified. 

8. The second respondent recorded that the first applicant said that the two units she had completed dealt with marketing research and marketing opportunities as well as strategies to improve the business and to deal with third parties.  She was unable to identify any further particular units of study in the remaining 10 units that she needed to undertake to complete the Advanced Diploma that would assist her.

9. The second respondent then made the following findings:

   a)the first applicant’s current studies were being undertaken for reasons other than genuine study as a student in Australia temporarily.  The second respondent was not satisfied of the necessity, “or indeed the explanation for the applicant to undertake her current studies”;

   b)the first applicant has made a life for herself and her husband and daughter in Australia. In making this finding, the second respondent recorded that the first applicant has links to her home country in the form of her mother, two brothers and her son.  Her husband’s family have property interests in Nepal and her own family has “interests to which she will in due course succeed”.  Nonetheless, having regard to:

   i)the first applicant’s conduct in remaining in Australia with only three visits back to Nepal totalling 11 and a half weeks in approximately 12 and a half years since arriving in Australia;

   ii)the financial support the applicant received from her family supplemented by income from employment here; and

   iii)her ability to remain in contact with her family on a daily basis by electronic means

   led the second respondent to conclude that there was not a significant incentive for the first applicant to return to her home country at the conclusion of her study.

   c)that the economic circumstances of the first applicant would not present a significant incentive for her not to return to her home country;

   d)there were no requirements for military service commitments affecting the first applicant which would present a significant incentive for her not to return to her home country;

   e)there are no circumstances of political and civil unrest in the area the first applicant’s family are located in her home country which would present a significant incentive for her not to return to her home country;

   f)the first applicant has ties in Australia being her husband and daughter and the means to remain in Australia either with family support or an ability to earn an income;

   g)the first applicant had a strong incentive to remain in Australia as a result of her involvement with the local Nepalese community together with the second respondent’s finding that the first applicant has ties in Australia and the means to support herself and her family in Australia;

   h)the first applicant’s conduct was designed to help her remain in Australia, the continuation of her studies was designed to circumvent the intentions of the migration program and the student visa for which the first applicant applied was being used to maintain ongoing residence in Australia.  The second respondent made that finding on the basis that:

   i)while the second respondent accepted that the applicant has undertaken studies and gained qualifications in Australia in Nursing (which she already had in her home country) as well as in Business and now Marketing and Communication, that study was taken over a period of 12 and a half years in circumstances where there was “some inconsistency in the applicant’s reasons for undertaking her current studies”.  The second respondent identified the inconsistencies in its decision record;

   ii)were the first applicant to remain in Australia to the completion of her proposed studies, she will have been in Australia for just on 13 years;

   iii)in the reasons given by the second respondent it did not consider that she had a significant incentive to return to her home country;

   i)the first applicant demonstrated an adequate knowledge of living in Australia and her intended course of study and the associated education provider;

   j)the first applicant’s proposed course of study was not consistent with her current level of education and was not necessary to improve her employment prospects because on her own case she will be running the clinic that she proposed to open;

   k)the second respondent was unable to conclude how the Diploma of Marketing and Communication related to the first applicant’s proposed future employment in her home country given her inability to explain just what particular skills, knowledge and attitudes she would gain that she did not already possess;

   l)the second respondent accepted that the first applicant’s stated intentions were to run a health clinic in a remote area of her home country and in this respect she was motivated by public and community service concerns rather than to earn remuneration for herself;

   m)at the time of the hearing the applicant had been in Australia for approximately 12 and a half years during which time she had returned to her home country on three occasions for a total of 11 and a half weeks. Were she to remain to the conclusion of her proposed studies, the applicant will have been in Australia for just on 13 years;

10. The second respondent then said:

    21. Balancing all these findings, the Tribunal considers the weight of the evidence points more to those factors not favouring the applicant’s case rather than those factors which are supportive of her case. The matters in subparagraphs 20(a), (b), (i), (j), (k), (l), (m), (n), (o), (p), (q), (t), (u), (w) and (aa) above weigh more heavily in the view of the Tribunal to establish that there is not a significant incentive for the applicant to return to her home country and that the student visa is being used to maintain ongoing residence in Australia than do the other subparagraphs which are either neutral to or in the applicant’s favour.

    22. Having had regard to all matters, including the Direction No.69 requirements to which regard is required, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

Consideration

1. In their application for review, the applicants set out the following grounds of review:

   • The Member made the jurisdictional errors or error in law in regard to not taking relevant factors, considering irrelevant factors, denied natural justice and misinterpreting Directions 69.

   Details

   • In paragraph 16, the Member made the opinion that and preformed the opinion that Nurse does not require further qualifications. Once the Member has formed that view, there is no other reasons that would be justifiable to the Member. My reasons for taking the business course was that it was practical. It was not even considered. I was not given a chance to clarify that the Member was about to make the decision on that ground. I was denied the natural justice.

   • In paragraph 17, the Member raises irrelevant issue that why the Diploma is required. If the Member believed that Certificate IV was necessary, then Diploma is a progress.  It was unnecessary inquiry that I did not mention about the Diploma in initial visa application.  Either the Certificate is relevant or not. Certificate IV to be relevant and Diploma not to be relevant is wrong interpretation or wrong question to ask. The Member misinterpreted the Directions 69 to the Member's discretion which is wrong in law.

   • In paragraph 18, the Member again asked the wrong question as in paragraph 17 and did not consider the fact that Business skills are essential for nurses. Nurse do MBA course for career and nowadays Diploma is taught at even Australian Institute of Management, the peak body in Australia for management studies. The consideration should be relevant to present work environment and not what was 20 years ago.

   • In paragraph 19, the Member asked wrong question to again about the necessity to take further 10 units. The Member has never questioned the 12 subjects already undertaken. The member cannot make the decision based on my nervousness on the day but the actual value of units to course. The understanding of the units is not necessary to establish it unless the Member explicitly tells that knowing the units is requirements to meet Directions 69. It is so many errors including not interpreting Directions 69 properly.

2. The conclusion that I have come to is that the first applicant’s complaint is with the merits of the second respondent’s decision rather than any real attempt to identify a jurisdictional error in the second respondent’s decision.  She does not agree with the second respondent’s decision and in her view, the second respondent ought to have concluded that she was a genuine applicant for entry and stay as a student.  Her oral argument to me and her grounds as set out above, in truth, take issue with the determinations of fact made by the second respondent rather than the process.  The applicant’s grounds of review and her oral argument do not reveal jurisdictional error by the second respondent.  My own consideration of the second respondent’s decision record does not reveal jurisdictional error either.

3. To the extent that the first applicant argues that the second respondent had prejudged the matter, there is no evidence before me to suggest that that is so.  There is no transcript of the second respondent’s hearing before me and there is nothing in the second respondent’s decision record to suggest pre-judgment on its part.

4. The matters that concerned the second respondent about the first applicant’s application are set out in its decision record.  It also sets out the opportunity it gave to the first applicant to respond to those concerns.  It has recorded the first applicant’s responses to those issues in its reasons.  The first applicant has not suggested that the decision record is inaccurate in any way.

5. The matters considered by the second respondent and the matters of concern raised by it with the first applicant were all matters relevant to the question to be determined by the second respondent.  Its attention was drawn to those matters by reason of Direction 69.  As the first respondent submits, paragraph 12 of Direction 69 expressly provides that decision makers should have regard to the value of the proposed course to an applicant’s future, including interrogating whether the student is seeking to undertake a course consistent with their current level of education, and the relevance of the course to the student’s proposed future employment.

1. The second respondent recorded its concerns that the first applicant was already “more than well equipped to communicate with” the organisations to which she referred, and in its view, was seeking to prolong her stay.  The second respondent examined the first applicant’s evidence about her current course, but was not satisfied that she had provided a satisfactory explanation about its relevance to her future given her previous study, her level of qualification and what it was that she intended to do upon return to Nepal.

2. The matters referred to by the first applicant in her first two grounds were matters relevant to the second respondent’s consideration because they were matters that went to the value of the proposed study to the first applicant’s future.

3. The matter complained of in the first applicant’s third ground of review (arising from paragraph 18 of the second respondent’s decision record) again merely cavils with the merits of the second respondent’s decision.  The enquiries made by the second respondent as recorded in that paragraph were clearly important and relevant to its decision making in the matter before it.  It was a matter to which the second respondent’s attention was directed by Direction 69.

4. Further, as the first respondent submits, the second respondent made no finding that business skills are not relevant for nurses.  It set out in detail the first applicant’s claims about the value of business skills to her in its reasons for decision.  However, as I have set out above, the second respondent did not accept the first applicant’s arguments about the need to undertake the course because of the inconsistencies in the first applicant’s asserted reasons for undertaking the study.

5. As to the final grounds relied upon by the first applicant, her suggestion that the second respondent’s interest in her knowledge of the remaining units to be undertaken by her was irrelevant, is misplaced.  Direction 69 required that the second respondent take into account the applicant’s knowledge of her intended course of study and the level of research an applicant has undertaken into their proposed course of study.  The questions posed by the second respondent about the value of the units to be studied by the first applicant was relevant to an assessment of the value of the course as a whole to the first applicant’s future.  These were plainly relevant matters about which the first applicant was given the opportunity to comment.

6. Moreover, as the first respondent submits, the second respondent was attempting to elicit the relevance of the first applicant’s current course to the arguments she had already made about the need to enhance her ability to communicate with external organisations. By its questioning, and in accordance with the procedure stipulated by s.359AA of the Act, the second respondent flagged that the information may be adverse to the first applicant’s case without adequate explanation.

7. It is clear from the second respondent’s decision record that the second respondent considered that the first applicant was unable to articulate the relevance of her current course in comparison to her existing qualifications.  That was something about which the second respondent was entitled to make enquiries of the first applicant and which was plainly relevant to the second respondent’s task.

Conclusion

1. The applicants have not demonstrated jurisdictional error on the part of the second respondent.  In my view, the second respondent’s decision was not otherwise affected by jurisdictional error.  On the material before me, I am satisfied and I find that the applicant was not denied natural justice by the second respondent.

2. The present application must be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 November, 2020

Associate:

Date: 3 November, 2020