Lama v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 926
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lama v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 926
File number(s): BRG 255 of 2022 Judgment of: JUDGE EGAN Date of judgment: 19 September 2024 Catchwords: MIGRATION LAW – Where applicant claimed that the decision of the Tribunal was unreasonable – where it was claimed that the Tribunal had failed to have regard to relevant material – where it was claimed that the Tribunal had failed to afford procedural fairness to the applicant – where no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), Migration Regulations 1994 (Cth), Cl. 500.212
Migration Act 1958 (Cth), Ministerial Direction No. 69
Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 18 September 2024 Date of hearing: 18 September 2024 Place: Brisbane Applicant: On his own behalf Solicitor for the Respondent: MinterEllison ORDERS
BRG 255 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: USTAV KUMAR LAMA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Application for Review filed on 16 June 2022 be dismissed.
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 EGAN
INTRODUCTION
The applicant is a citizen of Nepal who arrived in Australia in August 2019 as the holder of a Visitor Visa.
On 4 September 2019, the applicant applied for a Student Visa for the stated purpose of completing a Commercial Cookery Certificate IV and a Diploma of Hospitality Management.
On 23 January 2020, a delegate of the Minister refused the application for a Student Visa on the ground that the applicant did not meet Clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because it was considered that he was not a genuine temporary student in Australia. Clause 500.212 relevantly provided as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student:
a) 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
b) because 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 stayed intention to comply with any conditions to which the visa may be subject; and
c) because of any other relevant matter.
On 6 February 2020, the applicant made application to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision of the delegate.
On 12 August 2021, the Tribunal invited the applicant to provide information confirming enrolment in a registered course of study, as well as in relation to his satisfaction of the genuine temporary entry requirement.
The applicant filled out a form entitled “Request for Student Visa Information” and forwarded it to the Tribunal. On that form, the applicant consented to the Tribunal deciding the review without a hearing. [1] The applicant also provided a genuine temporary entrant statement and an updated confirmation of enrolments. [2]
[1] See p. 125 of Ex. 1 – Court Book (CB).
[2] CB p. 134 – 145.
On 18 May 2022, the Tribunal affirmed the decision of the delegate.
On 16 June 2022, the applicant filed an Originating Application for Review of the decision of the Tribunal. The grounds of the application were as follows:
Grounds of application
1 - The Second Respondent made a jurisdictional error by making an unreasonable decision that no reasonable decision maker would have made.
PARTICUALRS
a) There was no evidence before the First respondent and Second respondent which gives indication that after the course completion I will not go back to Nepal. The First Respondent and then second respondent concluded the case without any strong evidence and considered me as a non-genuine temporary entrant.
b) On Para 33, the Tribunal noted that I was not enrolled in any courses in Australia and gave greater concerns of my non-enrolment. The world was stop due to pandemic, and I was also disturbed by the Pandemic and like mostly of other migrants, I was also badly affected from this pandemic and could not studied. However, the Tribunal did not give further chance and ask for any explanation if this was a matter of concern because I was not represented by Lawyer or Migration agent before the Tribunal. Thus, I must have been advised and given an opportunity on a ground of a procedural fairness if this was a major concern for the Tribunal.
c) On Para 36, the Tribunal believed that I will not study and complete my package courses at Canterbury college because of my past non-enrolment. However, again the Tribunal failed to recognize the COVID 19 situation, which was very reasonable to believe for anyone that it was unpractical and impossible to complete studies during the pandemic period, especially for practical trainings.
2 - The Second Respondent failed to consider relevant material
PARTICUALRS
a) The Tribunal did not give any weightage to the fact that I am a married person with one kid and my family is overseas. I have a strong tie to my country and every reasonable person could have given high relevant to this material information.
4 - Procedural Fairness
PARTICUALRS
a) The Second respondent raised concern on my non-enrolment for 17 months. On para 37, the Tribunal made assumptions against my case and concluded that I am not a genuine student because I changed my college. However, there must have been some reason for the change of the college and if the Tribunal is considering this information important then I must have been given a chance to explain.
b) On Para 39, the Tribunal guesses the reason of the cancellation and made the assumption that my CoE was cancelled due to factors within my control. Also, in para 40, the Tribunal did not placed weightage to the pandemic period and made adverse comments by saying that I must have completed my studies because I was granted the visa. However, a reasonable person must give weightage to this fact that it was impractical for some students to complete their studies online or some college was not even able to deliver the courses.
At [16] of its reasons, the Tribunal identified that the only issue before it was whether the applicant had satisfied the genuine temporary entrant criteria for the purpose of the grant to him of a student visa. In doing so, at [17] – [18] of its reasons, the Tribunal noted that for the purpose of deciding the genuine temporary entrant criteria issue, the Tribunal was required to have regard to the matters set out in Ministerial Direction No. 69. [3]
[3] CB p. 160 – 165.
At [19] – [23] inclusive of its reasons, when considering how it was to approach the genuine temporary entrant criteria issue, it found as follows:
19. It 'is also timely for the Tribunal to remind itself that an applicant for this kind of visa has at least a practical forensic obligation to lead sufficient and credible evidence on the GTE issue. The Tribunal is under no general duty to investigate aspects of a case in relation to that or any other issue. Subject to the rules of procedural fairness the function of the Tribunal is to determine whether an applicant meets the GTE criterion on the evidence it has, including of course the evidence which an applicant has seen fit to provide.
20. Thus, the Tribunal is under no obligation to flesh out an applicant's case on the GTE issue. If an applicant does not lead any or any sufficient and otherwise credible evidence in relation to that issue after having been given a reasonable opportunity to do so he or she cannot expect the Tribunal to invent it.
21. Particularly is this so in a case where an applicant, such as this one, elects not to have a hearing. In such a case it is trite to observe that the Tribunal can only determine the GTE issue on the evidence it has. If there are gaps in the evidence in relation to important aspects of the GTE issue, an applicant in effect rolls the dice on that issue because, as he or she must be taken to know, the Tribunal cannot investigate them at a hearing even if, had there been one, it may well have done so.
22.In approaching the evidence led in this case, as in most which involve a determination on the papers, the Tribunal must also be conscious of the possibility that an applicant may have elected not to have a hearing because he or she does not want aspects of their case to be investigated.
23. Of course, an inference of this nature in a review case such as this would require clear, if not compelling, documentary evidence and would not be made lightly.
Ground 1 of the Application for Review asserted that the decision of the Tribunal was unreasonable and that that constituted jurisdictional error. The applicant claimed that there was no evidence before the Tribunal supportive of the proposition that the applicant would not return to Nepal after the completion of his course. The applicant largely relied upon the global Covid pandemic as the basis of his not having been able to complete his studies.
When considering the criteria under Ministerial Direction No. 69, the Tribunal dealt with the following issues:
The Applicant’s Circumstances in Australia
a) At [53] of its reasons, the Tribunal found that the applicant enjoyed living in Australia, had made many friends here, and that he saw commercial opportunities here in the hospitality sector. [4]
[4] CB p. 158.
b) At [45] – [47] of its reasons, the Tribunal noted that the applicant had not given any details regarding his living arrangements in Australia. The Tribunal was satisfied that the applicant was staying with his brother, an Australian citizen, who had been living in Australia since 2008. His brother had been meeting the applicant’s tuition fees and other expenses, though the Tribunal noted that there were no details provided in relation to any of those arrangements.
c) The Tribunal was not satisfied that the applicant had put forward sufficiently cogent evidence to warrant a finding that he had a significant incentive to return to Nepal after completion of his studies.
d) The Tribunal noted at [50] of its reasons that the applicant had said in his undated genuine temporary entrant statement [5] that he had spent most of his life in countries other than Nepal, [6] and that his ageing parents lived in the USA. [7]
[5] CB p. 134 – 142.
[6] CB p. 141.
[7] CB p. 142.
e) The applicant has family living in Australia who have been supportive of him.
Circumstances in the Applicant’s Home Country
a) At [44] – [48] of its reasons, the Tribunal found as follows:
44.In his 2019 GTE statement he said not unequivocally that after completing his "education" here he wanted to return to Nepal to seek out job opportunities in the Hospitality and Tourism sector and went on to say that he had family there including his "beloved wife and son" who were the main reason for him wanting to go back. In the VA, he identified them, among others, as non-accompanying members of his family unit.
45. According to the VA his son was born in Nepal on 15 June 2018 and, according to the 2019 GTE statement, he first came out to Australia on 25 July of that year for a "family visit" and stayed with his brother, Santosh, and his family until 9 September 2018 when he returned to Nepal before coming out here again in or about August 2019, apparently. He does not state why he returned to Nepal at that stage, it may have been to see his family, including his wife and son, or it may have been because his visitor's visa was about to expire, or it may have been a combination of both. The Tribunal simply does not know in circumstances where the Response Form calls for the disclosure of this information. Nor does he state what he did in Nepal from September 2018 to August 2019.
46.In the 2021 GTE statement, and in his February 2020 letter, he reiterates that his wife and son are "precious" but nowhere in the evidence is there any real information about them or, for that matter, other members of his family. Nor has he given any evidence regarding the extent and method of his ongoing contact with them, if indeed there is any. According to the 2021 GTE statement his parents are now living in the United States where they intend to remain for "a few years".
47. Nor has he given any evidence in his Response Form or elsewhere regarding his living arrangements in Australia. It appears he is staying with his brother, Santosh, who is an Australian citizen, having been here since 2008, a registered nurse and who is meeting his tuition fees and other expenses, or so it seems, but the Tribunal simply does not know much if anything about the detail of these arrangements despite the Response Form specifically calling for them to be disclosed.
48. The Tribunal accepts that the applicant has other siblings in Nepal but on the evidence is not prepared to find that he is close to any of them. It may be that he feels an attachment to them and respects them, as he asserts in his February 2020 letter, but this is not itself suggestive of close personal ties between him and them and, in any event, they are counterbalanced by the presence in Australia of a sponsor, Santosh, with whom he is obviously close.
b) At [51] – [52] of its reasons, the Tribunal found that the applicant did not have strong economic ties to Nepal. It noted that there was no proposed employment in Nepal lined up for the applicant, or any plan for him to pursue business opportunities there.
c) The Tribunal noted that there had been a 17-month period of non-enrolment in any course by the applicant. Only after the service of the s. 359(2) notice did the applicant become re-enrolled in a course.
d) At [54] of its reasons, the Tribunal noted that though the applicant asserted that he owned properties in Nepal, the applicant had not provided any details of any such properties. The Tribunal did not accept the applicant’s evidence in that regard.
e) The Tribunal was not satisfied that the applicant had any incentive to return to Nepal. The Tribunal was entitled to have regard to the long periods of time that the applicant had spent away from Nepal, and the fact that he had not returned there since last arriving in Australia.
Value of the Course to the Applicant’s Future
a) The applicant initially commenced his commercial cookery course in August 2019 but his enrolment was cancelled in about March 2020.
b) The Tribunal did not accept that the Covid pandemic had affected his ability to study online. When considering that issue, the Tribunal at [36] – [42] of its reasons found as follows:
36. The Tribunal is also unable to accept evidence of this nature at face value in circumstances where the applicant's case is punctuated with evidentiary deficiencies and gaps. Not only has he failed to adequately explain a relatively long period of non-enrolment, he has given to the Tribunal no reason to be confident that he will complete his studies in the Canterbury package on time in circumstances where his earlier package went off the rails for no good reason.
37. If he was in fact motivated to undertake his studies at Canterbury because he genuinely wants to apply his knowledge and skills in the pursuit of a career in the Hospitality sector it is very hard to understand why he would not have persevered with his studies at Brighton despite the challenges which he faced from COVID. Moreover, if the applicant had done that, and this is something which on the evidence he could and should have done, he would have completed them in October of last year. Having elected, in effect, to abandon his studies at Brighton he now wants to remain here until at least October 2023 to complete the very same courses at Canterbury.
38. On the evidence led, the reality in this case is that the applicant now wants to be given another opportunity to engage in the same Hospitality package which he had embarked upon in August 2019 and abandoned in March 2020, if not earlier. There is no indication in his evidence that he was for an acceptable medical or other reason unable to study the CIV in the Brighton package as from March 2020. His case on this aspect goes no higher than a suggestion that he did not do so because he not like on-line studies in that course.
39. More particularly, there is no medical or other evidence from him to the effect that his ability to productively study the CIV at Brighton was compromised because of the ongoing effects of COVID. The fact that Brighton cancelled his enrolments in March 2020 can only mean that he was not engaging satisfactorily with his studies at that time a fact which, absent credible medical evidence, does not assist him. It may well be, as he asserts in his February 2020 letter, and as is corroborated to some extent by the interim Results Sheet for the CIV, that he was a competent student at Brighton and was making progress in that course but the fact is that, on his own case, his enrolment in that course was cancelled for what must have been an unsatisfactory attendance or other record.
40. Whilst the Tribunal has no difficulty in accepting that the onset of COVID in Australia in March 2020 has had profound ongoing effects for students in this country the pandemic is not and never has been, of itself, an excuse for an international student who claims to be entitled to the grant of a Student 500 visa not to engage in productive study. There are cases in which an applicant for a visa of this kind has been able to establish on credible evidence, usually but not always of a medical nature, that his or her ability to function effectively and/or engage in productive studies has been compromised because of COVID, but the applicant's case on this important, if not critical, aspect is flimsy and, ultimately, completely unacceptable.
41. Nor is there any indication in his evidence to explain what he has been doing here since March 2020. He has left blank the section in the Response Form which seeks details of his work activities here and he has given no evidence whatever in his otherwise detailed 2021 GTE statement to fill in this gap.
42. Even if the Tribunal had been prepared to accept his evidence on his motives for engaging with the Canterbury package at this late stage, and on his intentions once he completed these courses, and was thus prepared to also find they would add value to his future, the Tribunal would not be prepared to attach other than minimal weight to this factor in the overall circumstances of this case.
c) At [31] of its reasons, the Tribunal recorded that the applicant had provided no interim record of his progress in the cookery course although he said he had been engaged in that course over an 8-month period.
d) The Tribunal was entitled at [33] of its reasons to express concern about the applicant’s non-enrolment for a period of 17 months, and the applicant’s lack of explanation for what he was doing during that period of time.
Immigration History and Other Matters
a) As to the applicant’s relevant immigration history, at [56] – [58] of its reasons, the Tribunal found as follows:
56. There is also a concern arising from his immigration history in Australia. As noted earlier, it is an admitted fact in this case that the applicant had been here for a few months on a visitor's visa during 2018 to see his brother before returning here in August 2019 on another visitor's visa and that, very shortly afterwards, on 27 August of that year, he purports to alter his immigration intentions by enrolling in the package at Brighton and lodging the VA to study the courses in that package. The timing of those enrolments, in circumstances where he had been here previously visiting his brother and had become, on his own evidence, familiar with the "education system" here during that visit, does suggest to the Tribunal, as it did to the delegate, that the applicant likely returned to Australia with the intention of studying. The Tribunal cannot in these circumstances accept his denials, if in fact there be any, that he did not have any such intention at that time.
57. The Tribunal is conscious of his evidence for wanting to study these courses In Australia rather than in Nepal, most of which is plausible enough, but gives it little weight in the overall circumstances of this case.
58. There are no other factors thrown up by the evidence of any real significance apart from the fact that he has no concerns about military service commitments and civil unrest in Nepal. But this too is given minimal weight.
b) At [60] – [62] inclusive of its reasons, the Tribunal found that based upon all of the evidence before it, the Tribunal had not been persuaded that the applicant had satisfied the genuine temporary entrant criteria.
c) The Tribunal was not satisfied that the applicant had any significant incentive to return to either Nepal or the UAE after the completion of any course of study in Australia.
On the question as to whether a decision was legally unreasonable or not, Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] held as follows:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:
“[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
The Court finds that the decision of the Tribunal was reasonably open based upon the material before it. The test for unreasonableness is stringent. The applicant has failed to demonstrate that such stringent criteria had been met.
There is no merit to Ground 1.
Ground 2 was a claim that the Tribunal had failed to consider relevant material. It was submitted that the Tribunal had failed to give due weight to the fact that the applicant was a married person with one child, and that they were living in Nepal. There is no merit to such claim.
At [44] – [48] of its reasons, the Tribunal clearly considered the applicant’s familial ties in Nepal. It is of note that at [46], the Tribunal recorded that nowhere in the evidence was there any real information about his family in Nepal, or other members of his family. Nor was there any evidence as to the extent or method of any contact between him and his family. Based upon those conclusions, the Tribunal was entitled to find that notwithstanding that the applicant had family in Nepal as claimed by him, the existence of such family did not constitute an incentive for him to return there.
Ground 4 was a claim that the applicant had not been afforded procedural fairness. It was claimed that the Tribunal had not correctly considered why the applicant had changed colleges, or the reason why his enrolments had been cancelled.
The Tribunal was concerned about the applicant’s claims for several reasons. First, it was the responsibility of the applicant to put persuasive material before the Tribunal on the question of the applicant’s genuine temporary entrant intentions. To the extent that the applicant attempted to do so, his attempt was unsuccessful.
There was no medical evidence put before the Tribunal substantiating his inability to study during the Covid period. The finding of the Tribunal at [39] of its reasons that the applicant was not engaging satisfactorily with his studies was open to the Tribunal.
The Tribunal properly considered all relevant matters before it. It was not persuaded that the applicant had made out his case.
Second, the applicant’s complaint was that he disagreed with the adverse decision made against him. To the extent that the applicant takes issue with the factual findings of the Tribunal, an attempt has been made for this Court to undertake an impermissible merits review of the decision of the Tribunal. As was said by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272:
“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 JJ) 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 (36). The Court continued (37): "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."
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (38). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (39):
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."”
Ground 4 is without merit.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Grounds of Review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 19 September 2024
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