Kharel v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1021
•11 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kharel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1021
File number: SYG 3072 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 11 October 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – student visa (subclass 572) refusal – Genuine Temporary Entrant Criteria cl 500.212(a) Sch 2 – whether Tribunal decision was affected by error of law, procedural fairness and jurisdictional error – whether the Tribunal unduly relied on Ministerial Direction No. 69 – whether the Tribunal failed to provide a warning about the potential refusal of the student visa – application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 359A, 359A(4)(b), 359(2), 360, 360(2)(a), 499(2).
Migration Regulations 1994 cl 500.212 to cl 500.218.
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration v Chamnam You [2008] FCA 241
Raza v Minister for Immigration & Anor [2015] FCCA 1623
1 Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; [1999] FCA 1238.
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 3 October 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Teo (Australian Government Solicitors) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3072 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASHISH KHAREL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
11 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application filed on 3 June 2020 is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the amount of $5,400.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”) on 08 November 2019 to affirm the refusal of a student visa application for failing to meet Genuine Temporary Entrant Criteria.
BACKGROUND
The applicant is a citizen of Nepal. He first arrived in Australia on 14 November 2008 having been granted a Student (Class TU) (subclass 572) visa on 10 October 2008 which was valid until 11 May 2011. Since arriving, the applicant had held three student visas and associated bridging visas.
On 30 September 2017 he applied for Student (Temporary) (Class TU) (subclass 500) visa (“the visa”).
In a decision dated 30 October 2017 a delegate of then Minister for Immigration and Border Protection (“delegate”), refused to grant the student visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criteria under cl 500.212(a) in Schedule 2 of the Migration Regulations 1994 (“the Regulations”).
At the time of decision, the applicant was enrolled to undertake a Diploma of Accounting which would have required the applicant to remain onshore until at least 2 December 2018. This would bring the applicant’s total time in Australia on student temporary visas or associated bridging visas to approximately ten years.
Records from the Provider Registration and International Student Management System (PRISMS) indicate that the applicant was previously enrolled in eight other Courses (as of October 2017), namely:
·General English (Beginner to Advanced)
·Diploma of Hospitality Management
·Certificate IV in Hospitality
·Diploma of Hospitality
·Bachelor of Professional Accounting
·Diploma of Management
·Advanced Diploma of Management
·Bachelor of Business
Following the decision to refuse the further visa by the delegate, on 17 November 2017 the applicant lodged an application with the Administrative Appeals Tribunal (‘ the Tribunal’) to review the delegate’s decision.
On 8 November 2019 the Tribunal affirmed the refusal of a student visa application on the basis that it was not satisfied the applicant met the Genuine Temporary Entrant (GTE) criteria.
For the reasons set out below the application must be refused.
ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
On 15 May 2019, prior to the hearing. the Tribunal invited the applicant to provide information pursuant to s 359(2) of the Migration Act 1958 (Cth) (“the Act”). This included an online ‘Request for Student Visa Information’ form. On 27 May 2019, the applicant lodged the form and provided evidence of his completion of both a Diploma and Advanced Diploma of Management and evidence of his enrolment in a Diploma of Accounting course.
The applicant provided at a later date, written submissions, evidence of completion of an English Language Proficiency course and evidence of his enrolment in a Certificate IV in Accounting and Bookkeeping course.
On 1 November 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant described personal difficulties he experienced. At the hearing he supplied a copy of a Divorce Order made on 21 July 2015 with respect to himself and his former wife. The applicant stated that he had known his former wife for 10 years. An earthquake in Nepal had also affected his family. These issues impacted his ability to concentrate and study.
The applicant was provided with a copy of the PRISMS record and orally informed that the information contained in the record would form the reason or part of the reason for affirming the delegate’s decision.
The applicant commented that he had only completed three courses since arriving in Australia, which were the ELICOS English course in 2009, the Diploma of Management in 2013, and the Advanced Diploma of Management in 2014.
The applicant stated that he did not complete a Bachelor of Business degree in 2017. He also stated that the information contained in the PRISMS record incorrectly stated that he completed it when he had only successfully completed 3 subjects. The Tribunal accepted this evidence.
The applicant told the Tribunal that he undertook courses at the Certificate, Diploma, and Advanced Diploma level to “build up” to a course at a Bachelor’s level. He stated that he was now sufficiently mature and would be able to focus on study and complete the courses he was enrolled in at the time, and later enrol in and complete a Bachelor of Accounting.
The applicant estimated that he would remain in Australia for a further “2 or 3 years” or until the completion of a Bachelor of Accounting degree that he had not enrolled in at the time. The applicant agreed that there were equivalent courses available in Nepal, but that the education system in Australia was better and Australian qualifications more highly regarded. The Tribunal did not accept that there were sounds reasons for the applicant not undertaking study in Nepal.
The Tribunal considered the applicant’s enrolment in a Certificate IV in Accounting and Bookkeeping and a Diploma of Accounting had limited value to his future where the evidence he had given was that he required a Bachelor of Accounting course to obtain suitable employment in Nepal.
The Tribunal also noted that the applicant had not undertaken any enquiries concerning the type of employment that would be open to him with the courses he intended to complete. This was considered in light of the applicant wanting to obtain an accounting qualification since July 2011.
The Tribunal considered that the applicant had sufficient time to complete a Bachelor of Accounting degree even with regard to the applicant’s change of plans and personal setbacks. The Tribunal stated at [47]:
If the applicant’s genuine intention is to obtain a Bachelor of Accounting degree and return to Nepal and that has been his intention since July 2011 when he transferred from the Hospitality and Cookery course into a Bachelor of Professional Accounting, the applicant has had ample previous opportunity to complete such a course and return to his home country.
With regard to the applicant’s circumstances in Nepal, the applicant stated that his parents, sister-in-law and uncles currently live in Nepal. His parents own property and seek his return to remarry. The applicant provided evidence that he does not face any military commitments upon return to Nepal. The Tribunal observed there was no evidence of any political or civil unrest in Nepal.
Whilst some weight was given to the applicant’s ties to Nepal, this was countered by the length of time he has resided in Australia.
The Tribunal found the applicant’s ties to Australia were a strong incentive to remain in Australia. The applicant received consistent work for a number of years, which included employment as a kitchen hand, storeman, and forklift operator. The Tribunal concluded that the length of time the applicant has been in Australia, combined with his employment history demonstrated a high degree of knowledge of living in Australia.
With regard to the applicant’s immigration history, the Tribunal noted that the applicant had only returned to Nepal once 6 years prior. No weight was otherwise given to the applicant’s immigration history. There was no evidence that the applicant had ever had a visa refusal or any other immigration issues.
In a decision on 08 November 2019, the Tribunal affirmed the decision to refuse the student visa as it was not satisfied the applicant genuinely intended to stay in Australia temporarily. A letter dated 11 November 2019 notified the applicant of the decision.
GROUNDS OF JUDICIAL REVIEW
The grounds of application were lodged by amended Originating Application on 3 June 2020 and are as follows:
(1)The Tribunal decision was affected by erred of law, procedural fairness, and jurisdictional error in relation to exercise its power to consider granting student (temporary) (Class TU) visa. The tribunal failed to consider Migration act and regulations rather consider Ministerial Direction No 69, which should be assessed as secondary criteria for the grant of a student visa sub class 500 Visa.
Particulars:
The tribunal did not act on its judgement rather rely on Ministerial Direction 69 and influence by the delegates decision. In law, discretion as to legal rulings, such as whether evidence is excluded, may be exercised by a judge or tribunal member at all levels of law enforcement, which was denied in this matter by considering secondary criteria Direction 69 of the Minister, rather failed to consider relevant information in the applications and other related factors surrounding student visa. The tribunal did not provide an opportunity to seek further clarification rather affirmed decision made by the delegate.
(2)The tribunal failed to warned refusal of student visa and failed to provide an opportunity to allow applicant to seek further information’s for the grant of a student visa.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not a merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case. The applicant told the Court that he wished to seek an adjournment and asked the Court to provide him with legal representation.
The Court noted that the matter had been before the Court since 2019, and the applicant had ample time to arrange legal representation. Further, he did not advise the Court of any steps he had taken to arrange for legal representation. Given the significant amount of time the applicant had to arrange for legal representation, nearly 5 years, together with a lack of any real reason why he had been unable to do so to date, the adjournment application was refused.
The applicant told the Court that it had taken too long between the original delegate’s decision and the Tribunal decision. He stated as a result, he was unable to continue with his studies.
At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He answered that if he got a visa he would continue with his studies and ‘make his parents proud’.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one
In response to the applicant’s contention that the Tribunal’s decision was influenced by the delegate’s decision, the first respondent submits that the Tribunal dealt with the delegate’s decision in an entirely orthodox fashion. The Tribunal clearly understood its role in reviewing the delegate’s decision and there is no error in the Tribunal’s limited references to the delegate’s decision. To the extent that the Tribunal referred to the PRISMS records, this was simply a mechanism by which to afford the applicant procedural fairness.
The first respondent notes that because the PRISMS information was in the delegate’s record and that record was provided by the applicant to the Tribunal, s 359A was in fact not engaged; (see: s 359A(4)(b) and Minister for Immigration v Chamnam You [2008] FCA 241 at [11], [16] and [27]). It was submitted there is no error in the Tribunal providing the applicant with additional procedural fairness under s 359AA even though not specifically required, citing SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30] and Raza v Minister for Immigration & Anor [2015] FCCA 1623 at [31].
The Tribunal did not impermissibly rely on Ministerial Direction No. 69, nor did they fail to consider the Act and Regulations. Direction No. 69 was the operative direction at the time of the Tribunal’s decision. Under s 499 of the Act, the Minister may give directions to the Tribunal in the course of exercising the power to grant or reduce a visa under s 65 of the Act. Under s 499(2) of the Act, the direction must not be inconsistent with the Act or the Regulations and that there does not appear to be any suggestion from the applicant that Direction 69 is in breach of s 499(2)).
The first respondent submits that the Tribunal was required to consider Direction No. 69 alongside the Act and Regulations. Directions made under s 499 of the Act are binding on decision makers including Tribunals, citing Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; [1999] FCA 1238.
The applicant’s contention that the Tribunal has given impermissible deference to Direction No. 69 and failed to consider the relevant tests under the Act and Regulations, cannot be maintained. The Tribunal has engaged in an active intellectual process, applying the relevant legislation and policy to the applicant’s individual circumstances.
Ground two
There was no failure to warn the applicant that the refusal decision would be affirmed. There was no obligation on the Tribunal to specifically warn the applicant that the decision could be affirmed, noting that this is not a requirement under the codified obligations of the Tribunal found in Part 5 of the Act. The closest requirement to an obligation is that found under s 360 of the Act, which requires the Tribunal to invite the applicant to a hearing unless ‘the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it’; (see: s 360(2)(a)). The Tribunal complied with this obligation by inviting him to two separate hearings.
The Tribunal made clear to the applicant what the dispositive issue in the review was. In its invitation to hearing of 27 August 2019 the Tribunal said it would assess whether the applicant was a ‘genuine applicant for entry and stay as a student’.
The first respondent further submits the applicant was afforded multiple opportunities to provide information and clarify issues to be considered by the Tribunal. These events included:
·On 23 November 2017, in the acknowledgement of application, the Tribunal requested that if the applicant wished to provide material or written arguments, this be done as soon as possible.
·On 15 May 2019, the applicant was invited to provide information under s 359A, confirming his enrolment in a registered course of study and providing any information that indicated he was a genuine applicant for entry and stay as a student. The applicant provided a response and the requested material.
·On 27 August 2019, the applicant was invited to attend a hearing. The invitation included a request that the applicant provide all documents he intended to rely on to establish that he met the criteria for the visa, and specified the information and documents the Tribunal considered relevant to its decision. The applicant responded to the invitation to hearing on 3 September 2019 and provided further material.
·On 14 October 2019, the applicant was invited to attend a second hearing, which included an identical request for the information and documents the Tribunal considered relevant to its decision.
·The applicant attended both hearings on 26 September 2019 and 1 November 2019, and provided further documentation at hearing on 1 November 2019.
·Between 1 November 2019 and 8 November 2019, the applicant had a further 7 days during which he could either provide further information or seek clarification of the issues raised at hearing.
The first respondent submits that the applicant has had multiple opportunities to provide information in response to the Tribunal’s request for specific documentation and information, and to seek clarification at two different hearings and in the 7-day period following the hearing.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
Ground one is an allegation that the Tribunal failed to consider the Act and Regulations and rather considered Ministerial Direction No 69, which should be assessed as secondary criteria for the grant of the visa.
After setting out the background and material before it at [1] – [7] of the Decision Record, the Tribunal then set out the relevant criteria for the grant of the visa contained at cl 500.212 to cl 500.218. The Tribunal then correctly set out that in order to find that the applicant satisfied the criteria for cl 500.212(a), the Tribunal was required to have regard to the matters set out in Ministerial Direction No 69. Those matters are not a checklist and are rather intended to guide decision makers when considering the applicant’s circumstances as a whole. Further, the Tribunal may take account of any other relevant matter.
The Tribunal referred to the material that was before it, which included the delegate’s decision, however there is nothing in the Decision Record that suggests the Tribunal did not make a fresh decision based on the material that was before it. The Court is not satisfied the Tribunal was influenced by the delegate’s decision.
The Decision Record reveals an orthodox approach to the consideration of the entirety of the material before it, including the evidence available prior to the Tribunal hearing and the evidence given during the course of the hearing. This included a discussion in relation to the applicant’s study record as contained in a PRISMS print out that was given to the applicant during the course of the hearing. Noting the conclusions reached by the Tribunal, as set out in the Decision Record, the Court is not satisfied that the Tribunal impermissibly relied upon Ministerial Direction No 69 and failed to consider the Act or relevant Regulations. Ground one has no merit.
Ground two is an allegation that the Tribunal failed to warn of the refusal of the student visa and failed to provide an opportunity to allow the applicant an opportunity to seek further information. The Tribunal was under no obligation to do either of these matters.
It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction; (see: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]). The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”; (see:Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82]).
Nor was the Tribunal required to give the applicant a running commentary as to its concerns as to the weaknesses in his case.
The Tribunal was under no obligation to specifically warn the applicant that the Tribunal could affirm the decision to refuse his visa. The Tribunal was conducting a de novo merits review. There could only be two ultimate outcomes, being the delegate’s decision being set aside or the decision being affirmed. The Court is reasonably satisfied that the applicant was aware of what the issue in the matter was, being whether he met the relevant criteria for a GTE. He was aware that the delegate had found he had not met GTE criteria.
Nor was the Tribunal required to provide the applicant with a further opportunity to seek additional information that might support his case. The applicant attended two hearings, on 26 September 2019 and 1 November 2019. The Court is satisfied the applicant had more than a sufficient opportunity to put his case to the Tribunal and present any evidence he wished to in support of his case. Ground two has no merit.
DETERMINATION
As the applicant is unrepresented, the Court has perused the Tribunal’s Decision Record and the supporting material contained within the Court book. The Court is unable to ascertain any unarticulated jurisdictional error. In these circumstances, the application is dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 11 October 2024
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