Malla v Ors v Minister for Immigration and Anor

[2020] FCCA 2969

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALLA v ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2969

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Student (Temporary) (Class TU) (subclass 500) visa – where applicant subject to Public Interest Criterion 4013 – whether circumstances engage power to waive compliance with Public Interest Criterion 4013 – whether finding that applicant did not satisfy requirements for waiver of Public Interest Criterion 4013 was affected by jurisdictional error

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth) regs.500.211, 500.212, 500.213, 500.214, 500.215, 500.216, 500.217 of Schedule 2, Public Interest Criterion 4013(1)(b) of Part 1, Schedule 4

First Applicant: DEEPIKA MALLA

Second Applicant: NABIN GIRI

Third Applicant: DEEPIKA MALLA AS LITIGATION GUARDIAN FOR NICHOLAS GIRI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2693 of 2019

Judgment of: Judge Jarrett

Hearing date: 1 October 2020

Date of Last Submission: 1 October 2020

Delivered at: Brisbane

Delivered on: 3 November 2020

REPRESENTATION

The Applicants appeared in person.

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance.

ORDERS

1. The application filed on 20 August, 2019 be dismissed.

2. The first and second applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 2693 of 2019

DEEPIKA MALLA

First Applicant

NABIN GIRI

Second Applicant

DEEPIKA MALLA AS LITIGATION GUARDIIAN FOR NICHOLAS GIRI

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of the second respondent made on 22 July, 2019 which affirmed a decision not to grant the applicants a Student (Temporary) (Class TU) (subclass 500) visa.

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

3. Despite directions to do so, the applicants have not filed written submissions in support of their application.  Nor have they amended their application to further particularise the grounds of review.  I have the benefit of written submissions from the first respondent.

4. The applicants appeared by the first applicant at the hearing.  She made submissions in support of the application although was unable to identify any jurisdictional error in the second respondent’s decision.

Background

1. The applicants are citizens of Nepal who applied for a student visa on 23 February, 2017. The first applicant is the primary visa applicant.  The second and third applicants sought their visas on the basis that they were members of the family unit of the first applicant.

2. At the time of applying for the student visa, the applicant held a Student (Class TU) (subclass 573) visa (subclass 573 visa).

3. On 6 March, 2017 the first applicant’s subclass 573 visa was cancelled under s.116 of the Migration Act 1958 (Cth) for non-compliance with condition 8202 (failure to maintain enrolment in a registered course of study).

4. On 18 May, 2017 a delegate of the first respondent refused the student visa application (the subject of the present application) on the basis that the first applicant failed to meet cl.500.217 of Schedule 2 to the Migration Regulations 1994 (Cth). The delegate found that the applicant was affected by a risk factor under Public Interest Criterion 4013 of Part 1, Schedule 4 to the Regulations, which arose from her previous visa cancellation and she was therefore subject to a three-year exclusion period. The delegate was not satisfied that the applicant’s circumstances justified a waiver of the exclusion period under PIC 4013(1)(b). The delegate refused the student visa application.

5. On 7 June, 2017 the applicant sought review of the delegate’s decision before the second respondent. On 10 July, 2019 the first applicant appeared at a hearing before the second respondent with the assistance of her authorised representative.  Prior to the hearing, the applicant provided a statement to the second respondent dated 26 June, 2019.  In that statement, she said:

   a)her previously held subclass 573 visa was cancelled under s.116(1)(b) of the Act on the basis that she had breached condition 8202(2)(a) because she had not been enrolled in a registered course;

   b)the breach of the visa condition had been as a result of her pregnancy and post-natal depression; and

   c)the applicant completed a Diploma and Advanced Diploma of Leadership and Management and was currently enrolled in a Certificate III and Diploma of Early Childhood Education and Care. The statement addressed the value of this course and the applicant’s future plan to open a childcare centre.

6. As the first respondent submits, the second respondent correctly identified the primary criteria for the grant of the visa sought by the applicants were contained in cls.500.211 to 500.218 of Schedule 2 to the Regulations. It identified that the dispositive issue in the review was whether the applicant met PIC 4013 for the purpose of cl.500.217. At the relevant time PIC 4013 was in the following terms:

   PIC 4013

   (1)  If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A)or (3):

   (a)    the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or 

   (b)    the Minister is satisfied that, in the particular case:

   (i)  compelling circumstances that affect the interests of Australia; or

   (ii)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa within 3 years after the cancellation or determination.

   (1A)  …

   (2)    A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:

   (a)    because the person was found by Immigration to have worked without authority; or

   (b)    if the visa was of a subclass specified in Part 2 of this Schedule — because the person did not comply with a condition specified in that Part in relation to that subclass; or

   …

7. Part 2 of Schedule 4 of the Regulations specifies the following conditions applicable to a subclass 500 student visa: 8104, 8105, 8202, 8501, 8517 and 8518.

8. At the hearing before the second respondent on 10 July, 2019 the applicant acknowledged that the subject visa application was made before the three-year exclusion period specified under PIC 4013(2) had lapsed. 

9. The second respondent sought from the first applicant evidence of compelling circumstances affecting the interests of Australia, or of compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify a PIC 4013 waiver. The second respondent asked the applicant to clarify the immigration status of her child, one of the secondary applicants.  The applicant confirmed that the child held a bridging visa and was not an Australian citizen or permanent resident. The second respondent asked if there were any other circumstances that might affect the interests of Australia or affect a citizen of Australia or New Zealand citizen in her case. The applicant confirmed there were no such circumstances.

10. The second respondent records in its decision record that it asked if the applicant understood that she had made an application for the visa within three years of the cancellation decision, and that in her case, the exclusion period specified under PIC 4013(2) of three years does not conclude until February, 2020. The applicant said she understood the timing issue.

11. The second respondent recorded that it had carefully considered the applicant’s submissions and her circumstances, and in particular noted her submission that her visa cancellation came about because of difficulties she experienced in the birth and infancy of her son and more generally, with parenting responsibilities. The second respondent accepted that as her husband was away working after the birth, she was obliged to cope with the infant largely on her own and that was a stressful experience. The second respondent noted that there was material that corroborated the first applicant’s claims in that regard.  The second respondent concluded that the first applicant suffered significantly through the birth of her child and through coping with parenting without family support.  However, that information and finding did not, the second respondent considered, warrant a PIC 4013 waiver.

12. The second respondent also considered the applicant’s submissions in relation to her recovery and considered her academic completions since arriving in Australia in 2013.  She was awarded a Diploma of Leadership and Management, an Advanced Diploma of Leadership and Management and a Certificate IV in Business. The second respondent noted that the applicant was then studying on a bridging visa and was enrolled in a Certificate III in Early Childhood Education and Care which she was to complete on 9 August, 2019.  The second respondent noted that the first applicant was enrolled to study a further course, and concluded that despite the issues with the birth and infancy of her child, she was achieving academically and plans to go on doing so.

13. The second respondent considered the first applicant’s response to its request to provide evidence of compelling circumstances affecting the interests of Australia, or of compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify a PIC 4013 waiver, but it concluded that the applicant’s submissions did not support a waiver of PIC 4013.

14. The second respondent concluded:

    18. The Tribunal has looked at the entirety of the evidence in relation to the applicant’s circumstances, including her academic performance, and considered whether it amounts to compelling circumstances affecting the interests of Australia, or of compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify a PIC 4013 waiver. It has found no evidence before it that would be a reason to apply the waiver.

15. On 22 July, 2019 the second respondent affirmed the decision not to grant the applicant a student visa.  It delivered a written decision record setting out its reasons for affirming the delegate’s decision.

16. Having found that the applicant did not meet the criteria for the grant of a student visa, the second respondent affirmed the decision under review and concluded that the second and third named applicants could not satisfy the secondary visa criteria.

Grounds of review

1. The application for review pleads the following grounds of review (faithfully reproduced):

   1.  The circumstances and the situation where my visa has been refused was not enquired properly or I can say he/she did not tried to understand my emotional or mental status, that I went all through my which I clearly explained clearly.

   2. In relation to the decision making the officer did not do the justice on me as I mentioned him the situation and the phrase I was going through in my life with the proper proof and sufficient evidence.

2. These grounds do not identify any jurisdictional error in the second respondent’s decision. In my view they represent an attempt at merits review, something in which this Court cannot engage.

Consideration

1. Public Interest Criterion 4013(2) of Schedule 4 to the Regulations applied to the applicant by virtue of the cancellation decision for failure to comply with condition 8202 attached to her subclass 573 visa.  Public Interest criterion 4013 can be waived on compassionate or compelling grounds where the interests of Australia, or an Australian citizen, Australian permanent resident or an eligible New Zealand citizen are affected.

2. The applicant made no submissions in support of the PIC 4013 waiver, nor did any material before the second respondent point to aspects of her case which could be considered to amount to compassionate or compelling circumstances “affecting the interests of Australia, or an Australian citizen, Australian permanent resident or an eligible New Zealand citizen”.  I accept the first respondent’s submission that the second respondent could not make a decision other than to affirm the decision under review. 

3. That said, it is clear that the second respondent considered the applicant’s submissions made to it concerning the circumstances which led to the cancellation of her subclass 573 visa, including information about the stressful birth of her child, subsequent post-natal difficulties, consequent impact on her studies and academic aspirations following her recovery.  The second respondent acknowledged the applicant suffered significantly in the past but properly found that there was no evidence before it which would justify the application of a PIC 4013 waiver.

4. As the first respondent’s submissions point out, the nature of the pleaded grounds once again tend towards an argument with the visa cancellation decision, rather than the visa application decision before the second respondent.  It was the latter that the second respondent was required to review, not the former.  The second respondent’s reasons demonstrate that the second respondent was at pains to make that distinction clear to the first applicant and her agent.  The second respondent’s reasons record that the first applicant indicated that she understood what it was that was under consideration by the second respondent. 

Conclusion

1. The application does not reveal any jurisdictional error in the second respondent’s decision.  The application should be dismissed with costs fixed in the amount claimed by the first respondent.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 November, 2020.

Associate:

Date: 3 November, 2020