Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 836
Federal Circuit AND FAMILY Court of Australia
(DIVISION 2)
Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 836
File number: MLG 3014 of 2018 Judgment of: JUDGE RILEY Date of judgment: 12 October 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – student visa – whether the Tribunal applied the correct test for genuine temporary entrant – whether the Tribunal denied the applicants procedural fairness – whether the Tribunal made a jurisdictional error by not administering an affirmation to the first applicant. Legislation: Migration Act 1958 ss. 363, 499.
Migration Regulations 1994 cl.500.212 of Schedule 2.
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568
Plaintiff M64/2015 v MIBP (2015) 258 CLR 173; (2015) 148 ALD 206; (2015) 327 ALR 8; (2015) 90 ALJR 197; [2015] HCA 50
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63.
Other material: Ministerial Direction No. 69 under s.499 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications. Division: Division 2 General Federal Law Number of paragraphs: 73 Date of hearing: 12 September 2022 Place: Melbourne Counsel for the Applicants: John Young Solicitor for the Applicants: Shamser Thapa & Associates Counsel for the First Respondent: Timothy Reilly Solicitor for the First Respondent: The Australian Government Solicitor Counsel for the Second Respondent: No appearance Solicitor for the Second Respondent: The Australian Government Solicitor ORDERS
MLG 3014 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAKSHYA KARKI
First ApplicantSUDHIR BASNET
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
judge riley
DATE OF ORDER:
12 October 2022
THE COURT ORDERS THAT:
1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The decision made on 11 September 2018 by the second respondent in matter number 1708126 be set aside.
3.The matter be remitted to the second respondent for determination according to law.
4.The first respondent pay the first and second applicants’ costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s reasons for judgment may be subject to review 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 RILEY:
Introduction
This is an application for review of a decision of the Administrative Appeals Tribunal made on 11 September 2018. The Tribunal affirmed a decision of a delegate of the Minister refusing the first applicant a Student (Temporary) (Class TU) subclass 500 visa. There is no reference to the second applicant in the Tribunal’s decision. He is the first applicant’s partner and was included in her visa application as a secondary applicant.
background
The Minister’s written submissions filed on 29 August 2022 set out the background to this matter as follows:
2.The first applicant (the applicant) is a citizen of Nepal who arrived in Australia in 2007.
3.On 2 March 2017, the applicants applied for Student (Temporary) (Class TU) Subclass 500 visas (the visa): CB 9-41. The second applicant is the applicant’s spouse and a dependent to the application for the visa: CB 12.
4.On 28 March 2017, the delegate refused the visa on the basis that the applicant did not satisfy cl 500.212(a) of Schedule 2 to the Migration Regulations 1994, which required the primary applicant to be a genuine temporary entrant (GTE criterion): CB 52-57.
5. The applicants sought review by the Tribunal on 13 April 2017: CB 58-59. On 10 August 2018, the Tribunal invited the applicant to a hearing to give evidence and present arguments, to take place via telephone on 11 September 2018: CB 66-68. Relevantly, the invitation explained to the applicant that in addition to assessing whether the applicant met the GTE criterion, it may also have regard to whether the applicant satisfies cl 500.212(b): CB 76.
MATERIAL RELIED UPON
At the hearing before this court, the applicants relied upon:
(a)the court book filed on 24 June 2020;
(b)the initiating application filed on 9 October 2018 and amended on 3 August 2022;
(c)their written submissions filed on 3 August 2022;
(d)the affidavit affirmed by Shamser Sing Thapa on 13 August 2022 (which exhibits the transcript of the Tribunal hearing); and
(e)the joint bundle of authorities emailed to chambers on 9 September 2022.
The Minister relied upon:
(a)his response filed on 9 November 2018;
(b)the court book filed on 24 June 2020;
(c)his written submissions filed on 29 August 2022; and
(d)the joint bundle of authorities emailed to chambers on 9 September 2022.
Ground 1
Ground 1 of the application filed on 9 October 2018 and amended on 3 August 2022 (“the application”) is as follows:
The Second Respondent made jurisdictional error by failing to have regard to the terms of regulation 500.212 and instead adopting its own test of “genuine student”.
Subclause 500.212 of Schedule 2 of the Migration Regulations 1994 provides that:
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 regard 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) of [sic] any other relevant matter.
The Tribunal did not set out cl.500.212 in its reasons for decision. The Tribunal summarised the effect of cl.500.212 in paragraphs 6 and 7 of its reasons for decision as follows:
6. To satisfy clause 500.212, an applicant must be both a genuine student who intends to stay in Australia temporarily and must intend to comply with conditions subject to which the visa is granted.
7. To be a genuine student, you must be engaged in, and applying yourself, to a meaningful program of study, progressing academically down an identifiable path.
(emphasis added)
The applicants argued that the Tribunal had misunderstood and misapplied cl.500.212 by introducing the extraneous requirement of the first applicant being a “genuine student”. The Minister argued that the Tribunal had merely used the shorthand of “genuine student” for the requirement to be “a genuine applicant for entry and stay as a student” and did in fact correctly understand and apply cl.500.212.
The Tribunal explained the issue further in paragraphs 9 to 11 of its reasons for decision, which were as follows:
9.As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No. 69 and the issues in that direction. They were detailed in the primary decision and they include your circumstances, the value of your courses to your future, your immigration history, your incentive to stay in Australia or return home, if you are using the student visa program to maintain ongoing residence in Australia and any other relevant matters.
10. It is not intended as a checklist but as a guide for decision makers to weigh up an applicant’s circumstances as a whole in reaching a finding about whether an applicant satisfies the genuine temporary entry criteria.
11. The role of the Tribunal, as I said, is to take a fresh look at your application, consider your circumstances, the issues in Direction No.69 and be satisfied that you are a genuine student who intends to stay in Australia temporarily.
(emphasis added)
The Tribunal proceeded to address various issues, and then said:
32.Having been in Australia for 11 years, you have completed less than two years of study. The Tribunal does not believe that this is the behaviour or the academic progress of a genuine student. You respond stating that for much of that time you were a dependent on your husband’s visa.
…
40.As already stated, the Tribunal does not believe your study history is that of a genuine student and does not believe that your explanation of study gaps explains your behaviour which the Tribunal finds is not that of a genuine student.
…
44.… The Tribunal finds it difficult to reconcile your extensive proposed stay in Australia with your claim you are a genuine temporary resident but rather believes you are using the student visa program to maintain residence in Australia.
45.As noted in the primary decision Coles Myer recruitment continuously checked your work status on VEVO since April 2008. Firms make these enquiries when they go to employ people and you declared in your application and you said today you have been working at Coles supermarkets [since] May 2011. So despite your claims of being unable to study, you have managed to keep working. The Tribunal believes this demonstrates you are not a genuine student.
(emphasis added)
The Tribunal concluded at paragraph 49 of its reasons for decision:
Having considered your circumstances as a whole, including the issues in Direction No. 69, I am not satisfied you are a genuine student who intends to study temporarily in Australia, therefore, I find you do not meet clause 500.212.
(emphasis added)
As can be seen, in those passages, the Tribunal almost said that the question was whether the first applicant intended genuinely to stay in Australia temporarily, but also repeated the phraseology of “genuine student”.
The parties referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568, where the High Court said at pages 271 and 272 that:
The proper role of a reviewing court
The Full Court recognised, on the face of the delegate's assessment of the first respondent's claim, "that the delegate correctly directed herself as to the test which she had to apply" (33). Later in its reasons the Full Court noted (34):
"Undoubtedly the delegate considered Mr Wu to have a genuine fear of persecution for a Convention reason. The question was whether there was objective support for that fear. The delegate was obliged to find that there was if there was a real chance of persecution. The expression 'real chance of persecution' is used in the reasons. We refer to par 4.6(4) as an example. Paragraph 12 ...provides another. The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written."
In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities.
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
(footnotes omitted)
In the present case, it cannot be said that the Tribunal began and ended with the correct test. On the contrary, the Tribunal began and ended with the incorrect test, namely, whether the first applicant was a genuine student. In circumstances where the Tribunal did not ever clearly set out the correct test, this matter cannot be regarded simply as a case of “looseness of language” or “unhappy phrasing”.
The applicants relied on Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061, where Allsop CJ said:
13.The proper approach to the application of the clause requires an appreciation of the relationship between the disaggregated elements of cl 500.212 in subcll (a), (b) and (c), and the whole question requiring evaluation in the chapeau. There are many considerations that may be relevant to assessing whether someone is genuine in his or her intention to stay temporarily for subcl (a) or whether he or she is a genuine applicant for entry and stay as a student for the chapeau to cl 500.212. Those considerations will be taken up in (a)(ii) and (iii) and especially (iv) insofar as they relate to the applicant’s intention as to how long to stay; and in (b) and (c) (especially (c)) as to whether the applicant is genuine in his or her desire to be a student. But subcl (a) is concerned, as Logan J said in Saini, with the genuine intention as to length of stay, and nothing else.
14.The terms and structure of cl 500.212 require a careful treatment of three distinct criteria: the intention concerning length of stay, that is, that there is a genuine intention to stay temporarily: (a); that there is an intention to comply with any visa conditions: (b); and any other matter relevant to the subject matter, scope and purpose of the clause and grant of the underlying visa. These three considerations all feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student.
15. The clarity of structure of disaggregated elements to inform one overall evaluation demands separate attention to each element so that appropriate attention is given to relevant considerations, and so that appropriate focus is given to the relevant considerations.
…
22.… Subclause (a) is concerned and only concerned with the intention as to length of stay. …
The applicants also relied on Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25, where the Full Court adopted [22] of Eros, saying that:
[22] Ultimately, the Chief Justice held (at [22]) that the Tribunal misconstrued subcl (a) which is “concerned and only concerned with the intention as to length of stay”. …
…
[31] The presently relevant criterion, cl 500.212, requires satisfaction of a single state of affairs. It contains one sentence. The conjunction “because” connects the chapeau with subcl (a), implying a relationship of cause and effect: Pearce DC, Statutory Interpretation in Australia (9th ed, LexisNexis Australia, 2019) (at [12.11]). The conjunction “and” also marries subcll (a), (b) and (c), each of which is connected back to the chapeau by the combined conjunctive effect of the terms “because” and “and”. Further, each of subcll (a)(i)-(iv) and (b)(i)-(ii) is connected to its parent and, by extension, to the chapeau, by way of a colon or the conjunction “and”. This creates a waterfall effect, brought to a close by the full stop at the end of subcl (c). The combined effect of “because” ,“and” and the use of colon unites each composite part of cl 500.212, giving rise to “a whole idea or conception: ‘a genuine applicant for entry and stay as a student’”: Eros (at [8]). This reading is supported by the verb “is” in the chapeau, which encapsulates a single state of being.
…
[35]In summary, the authorities may be distilled into the following four mutually inclusive propositions:
(1) An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of “any other relevant matter” pursuant to subcl (c): Inderjit (at [31]); Eros (at [8]-[9]); Sanjel (at [18]).
(2) Subclauses (a), (b) and (c) address separate matters and require separate analyses: Eros (at [14]-[15]); Vidiyala (at [28]).
(3) It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly: Eros (at [22], [30]-[33]).
(4) An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa: Sanjel (at [18]); Vidiyala (at [28]). If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the “whole idea or conception” contained in cl 500.212: Eros (at [8]).
The Tribunal’s discussion in its reasons for decision is almost entirely about the first applicant’s study history. The matters that the Tribunal was required to consider under cl.500.212(a)(i) and (ii) were the first applicant’s circumstances and immigration history respectively. The Tribunal addressed the first applicant’s circumstances in paragraph 21 of its reasons for decision very briefly, saying:
When I consider your circumstances, you came to Australia on a student visa in September 2007, you got married in August 2008, completed the Certificate III in Financial Services in 2009. You subsequently enrolled in a Bachelor of Business at Charles Sturt University, scheduled to run between 23 February 2009 and 28 February 2012, however, that enrolment was cancelled in June 2009 for non-payment of fees.
The Tribunal did not concisely address the first applicant’s immigration history as such, but did note that she came to Australia on a student visa in 2007 (paragraph 21), and was granted a 573 visa current until 31 May 2011 (paragraph 25). The delegate gave more details of the first applicant’s immigration history, saying at CB 54 that:
I have taken into consideration your previous immigration history, you were granted your initial Student visa (TU 572) offshore on 16.08.2007 which was valid until 03.06.2009. You subsequently arrived in Australia on 18.09.2007. Since your initial arrival onshore you have held either a Student visa, student dependent visa or an associated bridging visa and you have been residing in Australia as the holder of temporary visas for nearly ten years. You have made two short trips outside Australia only for a cumulative period of 10 weeks. You were granted a student visa (subclass TU 573) on 100/6/2009 to study Bachelor of Business at Charles Sturt University. Examination of your study history in the Provider Registration and International Student Management System (PRISMS) indicate that your enrolment was cancelled due to non-payment of fees on 19.06.2011. Since then you remained in Australia as a dependent visa applicant only. You submitted a genuine temporary Entrant statement with this visa application. You stated “After finishing my higher secondary education my dream was to go abroad to peruse my further education for better learning and get educated in different environment for better future possibilities in my career. I decided to go to Australia for my further study and my family was happy with my decision and did fully support my decision so i came to Australia in 2007 to study diploma of accounting at Group College of Australia”. You stated that your family faced the tragedy of losing your husband’s sister in 2009 and your mother in 2015. The movement records held by department indicate that you and your husband did not depart the country to be your families during the difficult times. Rather you went overseas in 2012 for 4 weeks and in 2014 for 6 weeks. Mr Sudhir Basnet has not left the country since his arrival on 16.11.2006. He has been residing in Australia for 10.5 years. This is unlike the behaviour of a temporary resident and reflects lack of ties to his home country.
However, the Tribunal did not adopt the delegate’s summary of the first applicant’s immigration history.
Ministerial Direction No. 69 (“MD69”) sets out various other matters that the Tribunal was required to consider in determining whether the first applicant satisfied cl.500.212(a), namely, whether she intended genuinely to stay in Australia temporarily. MD69 was made under s.499 of the Act. As such, the Tribunal was obliged to comply with MD69.
The first issue to consider under MD69 was expressed as follows:
The applicant’s circumstances
6. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
In relation to the first applicant’s circumstances in her home country, which is part of paragraph 6 of MD69, MD69 said:
The applicant’s circumstances in their home country
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b. the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d. military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e. political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
In relation to the first applicant’s potential circumstances in Australia, MD69 said:
The applicant’s potential circumstances in Australia
11. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a. The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b. evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c. whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d. whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e. the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
In connection with the issue in paragraph 9.a of MD69, regarding whether a similar course is available in Nepal, the Tribunal said at paragraph 38 of its reasons for decision:
When I asked why you do not do your intended studies at home, you initially say “The course is not available”. The Tribunal does not accept this as a statement of fact. There are a number of education providers outside universities in Nepal, including the Knowledge Academy, that run courses that mirror the studies that are doing.
However, paragraph 9.a of MD69 required consideration not only of whether there were equivalent courses at home country, but also whether the first applicant had reasonable reasons for not studying in her home country. The Tribunal did not consider that issue.
In connection with paragraph 9.b of MD69, regarding the first applicant’s personal ties to her home country, the Tribunal noted at paragraph 48 of its reasons for decision that the first applicant has a sister and grandparents in her home country, which may provide some incentive to return.
In connection with paragraphs 9.c, d and e of MD69, regarding economic circumstances, military service and political and civil unrest, the Tribunal did not address these issues at all.
In connection with paragraph 11.a of MD69, regarding ties to Australia that would present as a strong incentive to remain, the Tribunal noted at paragraph 48 of its reasons for decision that the first applicant is in Australia with her husband (whose visa status is dependent on the first applicant’s visa.) The Tribunal did not say whether this circumstance would present as a strong incentive to remain in Australia. However, in paragraph 48 of its reasons for decision, the Tribunal said, without explanation, that the first applicant’s “current circumstances present a strong incentive to remain in Australia”.
In connection with paragraph 11.b of MD69, regarding whether the student visa program was being used to circumvent the migration program, the Tribunal did not expressly state its view.
In connection with paragraph 11.c of MD69, regarding whether the student visa was being used to maintain ongoing residence, the Tribunal found at paragraph 44 of its reasons for decision that the first applicant was using “the student visa program to maintain residence in Australia.”
In connection with paragraphs 11.d and e of MD69, regarding whether the primary and secondary applicants had entered into a relationship of concern, and the first applicant’s level of knowledge of Australia and the proposed course, the Tribunal was silent.
MD69 also included specific matters to be considered in relation to the value of the proposed course to the first applicant’s future. The direction said:
Value of the course to the applicant’s future
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The Tribunal did not address any of these issues specifically, but did make a global statement at paragraph 37 as follows:
The Tribunal does not believe that the course will provide significant value to your future. When I asked you what units or what elements of the course you believe will add value to your future, you are unable to provide, or you do not provide, any satisfactory answer, so I am not satisfied that this course will provide you with significant value towards your future.
In relation to immigration history, MD69 said as follows:
The applicant's immigration history
13. An applicant’s immigration history refers both to their visa and travel history.
14. When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a. Previous visa applications for Australia or other countries, including:
i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b. Previous travels to Australia or other countries, including:
i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii. the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian 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; and
iv. if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.
As discussed above, the Tribunal dealt very briefly with the first applicant’s immigration history. The Tribunal did not address whether the first applicant had:
(a)previous visas for Australia that were granted or refused, except that the Tribunal noted that she came to Australia in 2009 on a student visa and had a 573 visa that expired on 31 May 2011;
(b)applied for visas to other countries that were refused;
(c)previously held a visa that was cancelled; and
(d)complied with the migration laws of other countries.
On the other hand, the Tribunal did find in paragraph 39 of its reasons for decision that the first applicant had breached condition 8202 of her visa. However, the Tribunal did not go on to consider, as required by MD69, whether the breach was in circumstances beyond the first applicant’s control.
The Tribunal also considered the length of time the first applicant had spent in Australia, and whether her student visa might be used primarily for maintaining residence. The Tribunal found at paragraph 32 of its reasons for decision that the first applicant had been in Australia for 11 years and found at paragraph 44 of its reasons for decision that she was using the student visa program to maintain residence in Australia.
Both cl.500.212(a)(iv) and paragraph 16 of MD69 require the Tribunal to consider any other relevant matters. The Tribunal was entitled by that provision to consider the first applicant’s study history, and assess whether that study history supported or undermined her claim to intend “genuinely to stay in Australia temporarily”. It follows that the Tribunal’s lengthy and detailed consideration of the first applicant’s study history was not irrelevant.
Indeed, if the Tribunal had in fact correctly applied the test, and considered all of the relevant matters, it may have been open to the Tribunal to conduct the balancing exercise and conclude that the first applicant did not intend genuinely to stay in Australia temporarily.
However, as demonstrated above, the Tribunal did not consider all of the matters made relevant by MD69. While MD69 is not a checklist, that simply means that the first applicant does not have to have a positive score on every factor. The Tribunal is nevertheless required to consider every factor. That is made clear by paragraph 2 of MD69, which states:
Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
(emphasis added)
Ground 1 was not put forward as a relevant considerations point. However, the Tribunal’s failure to consider several of the factors specified in MD69 demonstrates that the Tribunal did not apply the correct test. The test the Tribunal applied was whether the first applicant was a genuine student, with an occasional reference to some of the factors required to be considered in determining whether the first applicant intended genuinely to stay in Australia temporarily. The Tribunal was aware of MD69, but did not fully or properly apply it.
Significantly, the Tribunal’s reasons do not expose any express consideration of the first applicant’s intentions as to her length of stay in Australia, as is required by Eros. As mentioned above, cl.500.212(a) is “concerned and only concerned with the intention as to length of stay”. To properly apply cl.500.212(a), the Tribunal needed to directly address that issue. The Tribunal did not do so. It superimposed on the question of intention as to length of stay the requirement to be a genuine student.
Reading the Tribunal’s reasons for decision fairly and as a whole, (Plaintiff M64/2015 v MIBP (2015) 258 CLR 173; (2015) 148 ALD 206; (2015) 327 ALR 8; (2015) 90 ALJR 197; [2015] HCA 50 at [59-60]), I consider that the Tribunal misdirected itself on the correct test to apply under cl.500.212(a) and thereby fell into jurisdictional error. For what it is worth, the Tribunal’s decision in this matter was initially made orally and later reduced to writing. However, that circumstance does not allow the court to conclude that the Tribunal applied the correct test.
Ground 2
The second ground of review in the application is:
The Second Respondent made jurisdictional error by further adopting non-statutory requirements of "genuine student" including requiring that the student be engaged and apply herself to a "meaningful program of study" progressing academically down an identifiable path.
This ground substantially overlaps with ground 1. It relies particularly on paragraph 7 of the Tribunal’s reasons for decision, which is as follows:
To be a genuine student, you must be engaged in, and applying yourself, to a meaningful program of study, progressing academically down an identifiable path.
(emphasis added)
The Minister conceded that paragraph 7 of the Tribunal’s decision did not set out the correct test. However, the Minister argued, there was nothing to indicate that the Tribunal applied the test set out in paragraph 7. The Minister submitted that the Tribunal added paragraph 7 just to give the first applicant a “bit of explanation … for the sort of things that might be relevant to the test.”
The difficulty with that submission is that the vast bulk of the Tribunal’s reasoning was directed to precisely the question set out in paragraph 7 of the Tribunal’s reasons for decision. The Tribunal patently did apply the test in that paragraph.
The applicants conceded that the matters identified in paragraph 7 of the Tribunal’s reasons for decision were relevant considerations. However, there were numerous other considerations that the Tribunal was required to weigh up as well, but did not. Instead, the Tribunal based its decision almost entirely on its “genuine student” analysis. The Tribunal thereby fell into jurisdictional error.
Ground 3
The third ground of review in the application was withdrawn during the hearing on 12 September 2022.
Ground 4
The fourth ground of review in the original application filed on 9 October 2018 was deleted in the amended application filed on 3 August 2022.
Ground 5
The fifth ground of review in the application is:
The Second Respondent made jurisdictional error by failing to comply with the requirements of s 360 of the Migration Act 1958 in relation to the finding at [42] that the Applicant had a history of past breaches of conditions of her visa and /or in relation to concluding the hearing and giving an oral decision before the Applicants' agent had finished making submissions and asking for the opportunity to clarify matters with the Tribunal.
In relation to the first aspect of this ground, the relevant finding was at paragraph 42 of the Tribunal’s reasons for decision. That paragraph is as follows:
From your history of past breaches of conditions of your visa, the Tribunal is not satisfied that you will comply with conditions subject to which your visa may be granted and, therefore, finds you do not satisfy clause 500.212(b).
The Tribunal referred in its reasons for decision to the events that constituted the first applicant’s “past history of breaches” in paragraphs 25 and 39 of its reasons for decision, which are as follows:
25.The 573 visa you were granted for those studies was current until 31 May 2011 and it appears, from the evidence available, that you did not study at that level post-June 2009, in breach of condition 8516.
…
39.When asked for an explanation about your study gaps which were largely while you were the primary holder of a student visa you provide, as far as I am concerned, no satisfactory answer. The fact that you were not enrolled and studying while holding a student visa means that you were in breach of condition 8202.
The delegate did not rely on the first applicant breaching any visa in his or her reasons for decision. Therefore, it was necessary for the Tribunal to alert the applicants to visa breaches possibly being a reason for affirming the delegate’s decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63.
The Minister argued that the Tribunal had alerted the applicants to this issue, firstly, in the hearing invitation, and secondly, during the oral hearing.
The hearing invitation included the following paragraph (at CB 67):
In determining whether you are a genuine applicant for entry and stay as a student, we may also have regard to cl.500.212(b) of Schedule 2 to the Regulations. This clause requires that you intend to comply with any conditions subject to which the visa is granted, having regard to your record of compliance with any previous visa conditions and your stated intention to comply with any conditions to which the visa may be subject. Please be prepared to answer any questions the Tribunal may have on this issue and provide any supporting information or documents you may wish to provide to the Tribunal.
The hearing invitation referred to “your record of compliance with any previous visa conditions” and asked the first applicant to be prepared to answer questions on that issue. However, the hearing invitation did not identify any specific breaches of any specific visa conditions. The hearing invitation did not afford the applicants procedural fairness. It was analogous to charging a person with a crime, without saying what the crime was, and without saying when and where it was committed.
During the oral hearing, at T13:31-36, the following exchange occurred:
[MEMBER]: - - - studying - you stopped studying at Charles Sturt, didn't you, in 2009? But you stayed on a 573 visa until May 2013, so that was in breach of condition 8416 of your student visa. You then didn't do any study, I don't think, until you did this English course in 2017.
Ms Karki: Yes
This was a three-pronged question. It was inherently unfair for that reason. The Tribunal did not give the first applicant an opportunity to respond to the allegation about the breach, because the Tribunal, without pause, went on to the allegation about not studying until 2017. The first applicant said yes to the Tribunal’s three questions. However, it is unclear if she meant yes to all of the three points the Tribunal had made, or just to one or two of them.
Moreover, the Minister conceded that the first applicant had not breached condition 8416, but said the Tribunal meant that she had breached condition 8516, as mentioned in paragraph 25 of the Tribunal’s reasons for decision. As far as I can tell, there is no condition 8416. Condition 8516 provides that:
The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
It is unclear how it was alleged that the first applicant breached that condition. The reference during the oral hearing to the wrong condition number, and the lack of explanation about how the first applicant breached the condition, and the failure to give the applicants an opportunity to respond, meant that the applicants were not afforded procedural fairness.
I also note that the Tribunal hearing in the present case occurred by telephone. As is well known, procedural fairness requires different things in different circumstances. Where a hearing is conducted by telephone, extra care must be taken to ensure that procedural fairness is afforded.
As to the second aspect of ground 5, the transcript of the Tribunal hearing shows at T18:26 that the Tribunal asked the applicants’ migration agent:
… is there anything that you would like to say or add that we haven’t already covered?
The agent then asked the Tribunal to give the first applicant six to nine months to enable her to finish her course. The agent spoke for what seems to have been a few minutes, and then said at T19:35:
And so, member, it's just a matter of a few months, so my humble submission is if – of course, like, they've already spent 10 years, 11 years, her husband has finished his Master's degree and if she could gain her diploma they will go back to their home country and start their career there. So that's my humble submission - my humble submission to the tribunal to provide them one more opportunity to complete their course, member.
The transcript shows that the Tribunal then began delivering its oral decision.
The applicants submitted that their agent was still in the process of making submissions when the Tribunal began delivering its decision. I do not agree. By saying, “So that’s my humble submission”, the agent signified that he had finished his submissions. I do not accept that the Tribunal denied the applicants procedural fairness by not permitting their agent to finish his submissions.
Ground 6
The sixth ground of review in the application is:
The Second Respondent made jurisdictional error by exercising the discretion under s.363(l)(a) of the Migration Act 1958.
a. unreasonably and /or
b. in contravention of requirements of procedural fairness.
Section 363 of the Act relevantly provides that:
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
…
The applicants argued that it was a jurisdictional error for the Tribunal to not have asked the first applicant whether she wished to swear an oath or make an affirmation, and to not have administered the oath or affirmation. The applicants conceded that the power to administer an oath or affirmation must be exercised reasonably, but said that the Tribunal had not done so.
The Minister noted that the hearing was by telephone, and submitted that, in the absence of the applicants complaining at the time, it was not unreasonable for the Tribunal to proceed to take evidence without administering an oath or affirmation.
As the hearing was by telephone, the only practical option was for an affirmation to be administered. In any event, I do not accept that it was unreasonable in the sense of being a jurisdictional error for the Tribunal to not administer an affirmation. That is particularly so where the Tribunal did not rely on any credibility issues.
This ground is not made out.
Conclusion
As some of the applicants’ grounds of review have been made out, the Tribunal’s decision will be set aside, and the matter remitted for determination according to law. The Minister will be required to pay the applicants’ costs of the proceeding.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 12 October 2022
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