Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 361
•23 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 361
File number(s): SYG 1504 of 2018 Judgment of: JUDGE DRIVER Date of judgment: 23 March 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – whether the Tribunal misunderstood the course of study for which the applicant was seeking the visa considered – jurisdictional error established. Legislation: Migration Act 1958 (Cth), ss 368, 499
Migration Regulations 1994 (Cth)
Cases cited: Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 363 ALR 599
MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68
S14/2002 v Refugee Review Tribunal [2004] FCAFC 171
Number of paragraphs: 43 Date of hearing: 25 February 2021 Place: Sydney Solicitors for the Applicant: Mr H Bhatta of Residency Legal Counsel for the Respondents: Ms N Laing Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 1504 of 2018 BETWEEN: ANIL MANANDHAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
23 MARCH 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 2 May 2018 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine according to law the review application before it.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant, Mr Manandhar, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 May 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Manandhar a temporary student visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Manandhar is a 32 year old citizen of Nepal.[1] He first arrived in Australia on a student visa on 9 November 2007.[2]
[1] bundle of relevant documents (RD) at 2
[2] RD 26
Mr Manandhar applied for the student visa on 24 August 2016 for the purpose of undertaking a Bachelor of Business.[3] Mr Manandhar claimed he enrolled in the Bachelor of Business in order to obtain a student visa and complete two outstanding units in a Bachelor of Accounting, before returning to Nepal;[4] he completed his Bachelor of Accounting on 27 April 2018.[5]
[3] RD 1-16
[4] RD 81 at [7]
[5] Affidavit of Mr Manandhar sworn 14 August 2018 (Mr Manandhar’s Affidavit) at Annexure A
The delegate refused to grant the student visa on 21 September 2016.[6] Mr Manandhar applied to the Tribunal for review of the delegate’s decision on 6 October 2016.[7] Mr Manandhar and his migration agent attended a hearing before the Tribunal on 30 November 2017,[8] and the Tribunal affirmed the decision under review on 2 May 2018.[9]
[6] RD 28
[7] RD 30-31
[8] RD 28-69
[9] RD 80-83
Tribunal decision
The Tribunal considered whether Mr Manandhar satisfied the so-called “genuine temporary entrant” criterion in clause 500.212(a) of the Migration Regulations 1994 (Cth) (Regulations), having regard to the factors outlined in Direction No 69 made under s 499 of the Migration Act 1958 (Cth) (Migration Act) (Direction 69).[10]
[10] RD 81 at [3], [14]
The Tribunal noted Mr Manandhar’s claims that he had two subjects to complete in his Bachelor of Accounting degree before his stated intention of returning to Nepal and working in his brother’s business but had concerns about his motivations for re-enrolling. This included that he had already spent 10 years studying in Australia and had a girlfriend in Australia. The Tribunal considered Mr Manandhar had spent “very little time” in Nepal since coming to Australia, which it considered suggested a lack of ongoing connection or incentive to return to Nepal. Further, the Tribunal did not consider that Mr Manandhar had provided a satisfactory reason as to how completion of the degree would enhance his career plans over the qualifications that he had already obtained.[11]
[11] RD 83 at [16]-[18]
The Tribunal observed at [4] that Mr Manandhar was 32 years old and a citizen of Nepal. He had come to Australia on 9 November 2007 to study a Diploma of Hospitality. He had since completed a number of courses, including a Diploma of Hospitality Management, a Certificate IV in Business, and a Diploma and Advanced Diploma of Management. At the time of the Tribunal’s decision, Mr Manandhar was enrolled in a Bachelor of Accounting with two subjects left to be completed.
Mr Manandhar claimed to intend to return to Nepal to expand his brother’s restaurant business after his courses were completed. He claimed he had applied for a further student visa because of the two remaining subjects that he needed to complete. He claimed that his agent had advised him to enrol in a new course, namely the Bachelor of Business, so that he could apply for a student visa and finish his accounting course.[12] He also claimed that he wanted to complete a Bachelor course as he already had an Advanced Diploma of Business. The Tribunal observed at [8]-[9] that his “evidence was not completely clear in this regard”.
[12] [7]-[8]
The Tribunal expressed that it “had some concerns about the applicant’s motivations for re-enrolling to study a Bachelor of Business”.[13] At the time of application, Mr Manandhar proposed to study until 4 October 2019. The Tribunal observed at [16] that Mr Manandhar had already spent some 10 years in Australia as a student and had studied courses in Hospitality, Business, Management and Accounting.
[13] RD 83 at [16]
The Tribunal observed that although Mr Manandhar has immediate family in Nepal, he has a girlfriend in Australia. Mr Manandhar’s claimed intention to return to Nepal because his brother has a business was “vague and unsupported by independent evidence”. Mr Manandhar had spent very little time in Nepal since arriving in Australia, which suggested a lack of ongoing connection or incentive to return. Whilst Mr Manandhar had said that he wished to finish his business degree he did not provide a satisfactory explanation as to how this would enhance his career plans over the qualifications he already has. The Tribunal was concerned at [17]-[18] that his enrolment in the Bachelor of Business was “for the purpose of extending his residency in Australia”.
Ultimately, the Tribunal was not satisfied that Mr Manandhar was a genuine applicant for entry and stay as a student as required by clause 500.212(a).[14] Accordingly, it affirmed the delegate’s decision at [19]-[22].
[14] RD 83 at [19]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 30 May 2018.
The matter came before me for an interlocutory show cause hearing on 26 March 2019. At that time, Mr Manandhar sought leave to rely upon a further amended application annexed to his counsel’s written submissions filed on 12 March 2019. There were eight grounds in that application, although Grounds 4 and 6 were not pressed.
In the course of oral argument, however, it became apparent that the real issue was whether the Tribunal had based its decision on a false factual premise, namely that Mr Manandhar was intending or had re-enrolled in a Bachelor of Business degree. I accepted that that proposition was arguable and made a show cause order in the following terms on 26 March 2019:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the issue whether the Administrative Appeals Tribunal based an adverse conclusion at [16] on a false factual premise by referring to the applicant re-enrolling in a Bachelor of Business course.
The matter was to be heard on a final basis later in 2019 but that was adjourned until April 2020. Regrettably, due to the pandemic, that hearing was further adjourned until 25 February 2021.
I have before me as evidence the book of relevant documents filed on 19 July 2018, as well as a supplementary court book filed on 18 March 2019 and a further document[15] filed separately on 18 March 2019.
[15] Application for Review to the AAT dated 6 October 2016
I also received two affidavits. Mr Manandhar’s affidavit made on 14 August 2018 and filed the following day annexed a Statement of Completion from the Universal Business School of Sydney and an academic transcript from the same institution as well as some email correspondence. I received the annexed documents subject to submissions and relevance. The body of the affidavit I received as a submission.
I also received the affidavit by Stefan Stefanic made on 11 March 2018 which annexes a transcript of the Tribunal hearing conducted on 2 May 2018.
CONSIDERATION
Mr Manandhar’s written submissions filed on 13 February 2021 unhelpfully address the eight proposed grounds in the further amended application in respect of which no leave was granted. They also address the issue of futility.
The Minister’s submissions filed on 17 February 2021 address the show cause order. The Minister relevantly submits as follows.
Mr Manandhar’s submissions in relation to “Ground 4”[16] and “Ground 7” appear to be the most relevant to this issue. As the Minister understands it, Mr Manandhar submits that he did not re-enrol in another course (ie. the Bachelor of Business) as he only held one Confirmation of Enrolment (CoE) at the time of hearing (for a Bachelor of Accounting). Mr Manandhar submits that he was only seeking a short extension of time in Australia at the time of the Tribunal’s decision. He submits that the Tribunal ought to have made its decision on the basis of the information before it rather than on the information that was before the delegate.
[16] The Minister notes that Ground 4 was formally abandoned by Mr Manandhar in 2018.
The Minister submits that, as the Tribunal’s reasoning demonstrates, the Tribunal did make its decision based on the information that was before it at the time of its decision. The Tribunal’s concern was that Mr Manandhar had again enrolled (ie re-enrolled) in a further course of study (the Bachelor of Business) and not whether or not that enrolment was maintained at the time of its decision. Whilst it is true that Mr Manandhar’s enrolment in the course was some time before the Tribunal’s decision, his motivations for doing so were capable of informing the Tribunal’s findings regarding his later intentions. Whilst Mr Manandhar expressed some desire to finish the degree at the hearing before the Tribunal, he did not provide satisfactory reasons as to how doing so would enhance his career plans.[17] The Tribunal was not obliged to accept that, at the time of its decision, Mr Manandhar intended to leave Australia within the timeframe he had alleged.
[17] See pages 6.22, 9.37, 10.42-47, 11.4-14 of Annexure A to the affidavit affirmed by Mr Stefanic on 11 March 2018 (Transcript) and RD 83 [17]
The Minister understands the email referred to at [48] of Mr Manandhar’s submissions to be that which appears at Annexure B to his affidavit made on 14 August 2018. As that email was sent after the Tribunal’s decision was made, the Tribunal had no power to vary its decision upon receiving it.[18] Mr Manandhar also refers at [48] to a completion document provided to the Court (which is presumably Annexure A to the affidavit). As this evidence was also not relevantly before the Tribunal, there was no obligation upon the Tribunal to consider it. In any event, it is not clear how completion of Mr Manandhar’s accounting course is capable of demonstrating jurisdictional error on the part of the Tribunal.
[18] Section 368(2A) of the Migration Act
“Re-enrolling”
From the show cause hearing, the Minister understood the Court’s concern with [16] of the Tribunal’s reasoning to be whether the Tribunal may have mistakenly understood Mr Manandhar to have enrolled more than once in the Bachelor of Business course.
However, when read in context, the Minister submits that the most likely inference is that the Tribunal intended to refer to Mr Manandhar re-enrolling (ie again enrolling) in a further course of study (the Bachelor of Business) rather than re-enrolling (ie enrolling more than once) in that specific course.
This is said to be supported by the structure of the relevant sentence in [16]. The Tribunal refers to Mr Manandhar “re-enrolling to study” another course, namely, the Bachelor of Business. The interposition of words “to study” suggests that what the Tribunal considered Mr Manandhar was “re” or again doing was enrolling in a course of study, rather than again enrolling in that particular course.
It is also said to be supported by the context of the relevant sentence. In particular, there is no indication from the balance of the Tribunal’s reasoning, nor the transcript before the Court, that the Tribunal misunderstood Mr Manandhar as having previously been enrolled in a Bachelor of Business. To the contrary, the Tribunal at [7] expressly referred to the Bachelor of Business as having been a “new course”. The Tribunal elsewhere in its decision simply refers to Mr Manandhar having enrolled in the Bachelor of Business.[19]
[19] see [8]-[9] and [18]
The Minister submits that at worst, the reference to Mr Manandhar “re-enrolling” may be seen as infelicitous language, or a typographical error. Neither of these issues are capable of demonstrating jurisdictional error.[20]
[20] Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 at [21] and [30]; S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at [27]-[35]
The Minister submits that furthermore, even on the alternative construction (which is a more unlikely one), there is insufficient basis for finding that any error in this regard was material to the Tribunal’s decision.
There is nothing on the face of the decision to suggest that the Tribunal used the concept of Mr Manandhar re-enrolling, as distinct from enrolling in a further course, in any manner that was adverse to him. The Tribunal’s concerns regarding the Bachelor of Business were expressly set out in [17] and [18] of its reasons. The Tribunal was concerned that Mr Manandhar had enrolled in a course which at the time of application had a conclusion date of 4 October 2019. He had spent 10 years in Australia studying various courses, with only limited time spent in Nepal. He had not provided a satisfactory explanation as to how the additional course would enhance his career plans. These issues informed the Tribunal’s concern that his enrolment was for the purposes of extending his residency in Australia.
Within this context, there is said to be insufficient basis for finding that any error on the part of the Tribunal was material in the requisite sense. Indeed, it is said to be equally possible that such an error may have been favourable to Mr Manandhar. It would, at least, have suggested an earlier interest in the course. This would have been to Mr Manandhar’s benefit in circumstances where the Tribunal was concerned that his enrolment in the course was for the purpose of extending his residency rather than an interest in study.
The Minister submits that, in any event, there is no reason to doubt that the Tribunal’s use of the information regarding enrolment was as it stated it was in [17]-[18] of its decision. There is nothing in those paragraphs to suggest that the question of whether Mr Manandhar had enrolled, or re-enrolled, in the course was material to the Tribunal’s reasoning.
Mr Manandhar bears the burden of proof in demonstrating that any error was material in the relevant sense.[21] It is said not to be a burden that has been discharged on the evidence that is before this Court.
[21] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 363 ALR 599 at [1]-[4]; MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68
At the trial, Mr Manandhar was represented by the migration agent who represented him before the Tribunal. He addressed orally what had in substance been put by Mr Manandhar’s counsel at the show cause hearing,[22] namely that the issue was not simply the use of the word “re‑enrolling” but whether the Tribunal had misdirected itself as to the actual course of study being undertaken by Mr Manandhar at the time of the Tribunal decision. While Mr Manandhar had enrolled in a Bachelor of Business course when he applied for the visa, and while that was a live issue before the delegate, by the time the matter came before the Tribunal, Mr Manandhar had instead enrolled in a Bachelor of Accounting. At the time of the Tribunal hearing, Mr Manandhar did not hold a Certificate of Enrolment (CoE) for the Bachelor of Business course. Rather, he held a CoE for the Bachelor of Accounting course which was in fact well advanced. Mr Manandhar had only two subjects to complete. Indeed, the Statement of Completion annexed to Mr Manandhar’s affidavit states that he began the Bachelor of Accounting course on 14 July 2014 and completed it on 27 April 2018. That is shortly prior to the Tribunal hearing on 2 May 2018. Somewhat confusingly, Mr Manandhar told the Tribunal at the hearing that he still had two subjects to complete to obtain that degree. While that does not sit well with the Certificate of Completion, I proceed on the basis that Mr Manandhar’s statement was correct.
[22] the late Mr Kumar
Pages 71 and 72 of the court book confirm that Mr Manandhar or his representative handed up to the Tribunal at the hearing a CoE for the Bachelor of Accounting starting on 15 January 2018 and ending of 27 April 2018. An academic transcript was also handed up. That is consistent with Mr Manandhar still having two subjects to complete. Logically, the Tribunal’s focus of attention should have been on that course. It is apparent, however, from the Tribunal’s reasons at [16]-[18][23] that the Tribunal’s attention was, rather, directed to the Bachelor of Business course for which Mr Manandhar was not enrolled at the time of hearing or decision. The Tribunal’s reference to Mr Manandhar re-enrolling to study the Bachelor of Business is incongruous.
[23] CB 83
Unfortunately, the discussion that occurred at the Tribunal hearing was confused and confusing. The transcript is also incomplete in that parts of what was said are described as indistinct. It is nevertheless apparent that Mr Manandhar attempted to press upon the Tribunal that he intended to complete his accountancy studies and then return to Nepal. The Tribunal referred to the delegate’s decision which was based upon Mr Manandhar undertaking a Bachelor of Business studies. Mr Manandhar again attempted to clarify that he wanted to complete his degree of accounting although he was unclear whether he also wanted to undertake or complete a Bachelor of Business.[24]
[24] Transcript, page 6
Mr Manandhar’s migration agent further confused matters by suggesting that Mr Manandhar might want to undertake the Bachelor of Business studies after completing his accountancy studies.[25] The agent attempted to get the discussion back on track subsequently[26] but in my view the Tribunal was probably left confused.
[25] Transcript, page 10.42-47
[26] Transcript, page 11
While the question of Mr Manandhar undertaking or undertaking again studies for a Bachelor of Business degree was not irrelevant to the review by the Tribunal, it was, in terms of the case attempted to be presented at the hearing, a distraction. The Tribunal was not focused on the CoE which Mr Manandhar held at the time and for which course he was attempting to complete. In fact, he did complete it and I was informed at the trial that he had returned to Nepal.
Mr Manandhar pursues this matter notwithstanding his departure from Australia because of his concern that the fact of having been refused a visa will be a black mark on his travel history. The Minister did not pursue any issue of futility.
While it is true that Mr Manandhar had at an earlier time enrolled to study a Bachelor of Business, he had not pursued it. There was no clear evidence that he was intending to re-enrol to study a Bachelor of Business. The focus of attention at the time of the Tribunal hearing and decision should have been his enrolment for a Bachelor of Accounting and his express intention to complete that study and depart Australia. The Tribunal’s attention was in my view misdirected which amounts in my opinion to a constructive failure of jurisdiction. This goes to jurisdiction.
CONCLUSION
Mr Manandhar has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. Mr Manandhar should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 23 March 2021
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