Neupane v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 492
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Neupane v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 492
File number(s): SYG 1601 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 9 June 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether Tribunal involved in an error of law – whether decision legal unreasonable – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth)
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408
Minister for Immigration v Li (2013) 297 ALR 225
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 6 June 2023 Date of hearing: 6 June 2023 Place: Parramatta Solicitor for the Applicants: Mr Nair, M S Nair & CO Solicitor for the First Respondent: Ms Meaney, Mills Oakley ORDERS
SYG 1601 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROSHAN KUMAR NEUPANE
First Applicant
REETA ADHIKARI
Second Applicant
PRINCEE NEUPANE
Third 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:
9 June 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The First Applicant pay the First Respondent’s costs fixed in the sum of $6,100.00.
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
The applicants are citizens of Nepal. The first and second applicants are husband and wife respectively. The third applicant is their child.
On 26 December 2017, the first applicant applied for a Student (Subclass 500) visa (“Student visa”) to complete a Master of Business Administration (“MBA”) course. The second and third applicants are listed on the visa application as being part of a family unit.
On 1 March 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their visas.
The applicants sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 2 June 2020, the Tribunal affirmed the decision not to grant the applicant’s their visas.
The applicants now seek judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is reasonably lengthy, consisting of 15 typewritten pages plus six pages of attachments.
After setting out the background, the Tribunal instructed itself as to the requirements under clause 500.212 of the Migration Regulations1994 (Cth) (“the Regulations”) and the requirement to have regard to Direction No. 69, “Assessing the genuine temporary entrant criteria student visa and student guardian visa applications”.
At paragraph 13, the Tribunal outlined the evidence that it had before it, including relevantly, a Certificate of Enrolment (“COE”) for a Diploma of Leadership and Management, commencing on 4 November 2019 and ending on 30 October 2020, plus an email, dated 11 February 2020, regarding cancellation of this course due to non-commencement of studies.
The applicant was granted his original visa to commence in March 2018 based on enrolment for a MBA at the Holmes Institute. That COE was cancelled in May 2018 because the applicant did not commence the course. Although the applicant was not enrolled at the time of the hearing, the Tribunal was satisfied that he had a valid letter of offer for enrolment in the Diploma of Leadership and Management and therefore satisfied the enrolment requirements for a Student visa. The Tribunal then considered the applicant’s evidence regarding its satisfaction of the genuine temporary entrant requirements.
The applicant told the Tribunal that prior coming to Australia, he completed the MBA in Nepal. Prior to this, he completed a Bachelor of Commerce. He worked as a tutor in Nepal from 1990 until 2008.
When the applicant came to Australia, he undertook a Certificate in Aged Care that he completed in 2010. He obtained some casual work in aged care from the institution where he did his placement. He worked three and a half years at another institution.
In 2014, he enrolled in a Master of Professional Accounting. He completed this qualification in 2016, followed by a Professional Year in accounting which he undertook in 2017.
The applicant told the Tribunal that he had tried to find jobs in a few places but without success. He told the Tribunal that he made another application for a Student visa at the end of 2017 to study an MBA at Holmes Institute. He told the Tribunal he enrolled in this course to refresh the course he had undertaken in Nepal 16 to 17 years before.
The applicant stated his plans were to go back to Nepal after he completed his MBA and run a business.
When questioned as to how a Diploma of Leadership and Management would assist in with his future plans, he stated that it would teach him about retail skills, managing staff, in-store management, hiring staff, work health and safety and communication skills.
When questioned as to his personal ties in his home country, the applicant stated that his mother, sister, brother-in-law, uncles and their families all reside in Nepal. He has visited Nepal on a number of occasions over the years. He has no family in Sydney other than his wife and daughter. He does have some extended family in Adelaide
As to his incentives to return to Nepal, the applicant stated that his in-laws and mother lived there. He plans to live in Nepal temporarily, build a house for his mother and possibly look to immigrate to the United States.
When asked about his immigration history, the applicant stated he first arrived in Australia on 7 November 2008, as a secondary applicant to his wife’s Student visa. He remained dependent visa holder until April 2014, when he was granted a Student visa. He has not previously had a visa application refused or cancelled and has complied with all the conditions of his Australian visas.
When questioned as to his understanding of the delegate’s decision, the applicant stated he was a genuine temporary entrant. He had no interest in staying longer in Australia. Rather, he intends to return to Nepal and has applied to residency in the United States.
The Tribunal noted that had number of concerns regarding the applicant’s visa application which were put to him. The applicant was given an opportunity to provide submissions in relation to each concern. The Tribunal noted the applicant had not commenced any study in any registered courses since March 2016, almost a four year period. The Tribunal was concerned that the applicant was not genuinely interested in remaining in Australia temporarily for the purpose of study. The applicant stated that he had a plane ticket ready to return to Nepal in March 2020 and he was ready to go back to Nepal if the Tribunal’s decision was in his favour.
The Tribunal raised a concern that the applicant’s current Student visa application coincided with the ending of his Temporary Graduate 485 visa. The applicant responded that he needed an extension in any case because he had not yet finished his professional year in accounting. The applicant’s agent submitted the gap in the applicant’s study should be considered only three years because he took one year to undertake a professional year accounting. The Tribunal accepted that submission, however it noted that a professional year in accounting is not a registered course of study for the purpose of a Student visa.
The Tribunal also raised its concern that the applicant already had an MBA from a university Nepal and questioned what additional value he would obtain from a Diploma of Leadership and Management. The applicant’s migration agent submitted the reason why he had now decided to study a Diploma course rather than MBA was because his aim was to start a store in the United States. He did not now need an MBA and a Diploma was sufficient for his needs.
At paragraph 55 onwards, the Tribunal considered the applicant’s evidence and circumstances as a whole. The Tribunal considered the applicant’s claims regarding his need for studies in leadership and management, but was of the view these were only at a vocational level and would provide only incremental value, when considered against his existing qualifications, including a Bachelor Business Management, an MBA and a Masters of Professional Accounting. The Tribunal was not satisfied that the proposed course of vocational study would assist the applicant obtain employment or improve his employment prospects in his home country or third country, over above the qualifications he already possessed.
The Tribunal did not accept the applicant’s claims regarding the remuneration he could potentially earn as a result of his proposed study. He conceded the remuneration he could earn in the United States was dependent upon a number of variables on the ground. No evidence was provided that his remuneration would be related to his proposed further studies and how it might be used to increase his remuneration. The Tribunal was not satisfied the proposed course of study would provide value to the applicant’s future.
In terms of the applicant’s circumstances in his home country, the Tribunal accepted that he has family there, together with property, and that this could serve as an incentive to return to Nepal. The Tribunal however noted the evidence that since the applicant’s arrival in Australia in 2008, he had spent over 11 years in Australia and only departed on four occasions, the most recent of which was 2014. The Tribunal considered the applicants return travel history suggested that despite his family ties in Nepal, these were unlikely to services a significant incentive for him to return to his home country.
In terms of his potential circumstances in Australia, the applicant’s wife travelled with him to Australia in 2008. They have resided together in Australia since then. He has a nine-year-old daughter who also resides with him in Australia. The Tribunal found that the presence of the applicant’s family unit with him in Australia was likely to present a strong incentive to remain in Australia following completion of his present studies.
At paragraph 70, the Tribunal concluded that the applicant’s enrolment history indicated the applicant was not genuinely interested in enrolling in either an MBA or now in a Diploma of Leadership and Management. The Tribunal gave little weight to the applicant’s reasons for not commencing the Diploma of Leadership and Management in 2019. The Tribunal considered the applicant had enrolled in his current course of study, at a level below his existing qualifications, primarily for the purpose of the visa application in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study or obtaining the qualification for the stated reasons.
At paragraph 80, the Tribunal concluded, on the basis of the information that had been provided, there was insufficient evidence to demonstrate that the applicant was a genuine temporary entrant. Accordingly, the Tribunal affirmed the decision under review
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in an Amended Initiating Application filed with the Court on 6 November 2020. The two grounds are as follows:
1. The decision of the Tribunal involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal.
Particulars
a.At (17) the Tribunal states:
“"Although the applicant was not enrolled at the time of the hearing, Tribunal is satisfied that he had a valid letter for enrolment in the Diploma of Leadership and Management and was therefore capable of satisfying the enrolment for the Student visa."
b.The applicant provided the Tribunal with various documents as stated at (13) of the decision. These included:
i.Confirmation of enrolment (CoE) for the Diploma of Leadership and Management a SCSB, commencing on 4 November 2019 and ending on October 2020, created on 29 October 2019, as stated at (13) b.
ii.At (13) c. Email from SCSB dated 11 February 2020, regarding cancellation of course (Diploma of Leadership and Management due to non-attendance of studies,
iii.At 13) d. Letter of offer and student written agreement, prepared by SCSB, dated 13 February 2020.
iv.At 13) i - Confirmation of case receipt issued by the U.S. Citizenship and Immigration Service (USCIS) on 5 October 2015.
v.Other documents listed at (13) are also relevant.
c.Following the Tribunal hearing, the applicant provided the Tribunal with other documents as listed at (14) a., b., c and d. These documents concern the first applicant, his wife, the second applicant and their nine (9) year- old daughter, the third applicant to migrate to the US.
d.Further factual details are stated at (20)- (24) of the decision.
e.At (26) the applicant stated that he had a Bridging visa class A, This enabled the applicant and his wife to work full time and also to study full time.
f.At 27 the applicant's agent submitted that the applicant did not apply for another visa because he was barred under s 48 of the Migration Act from applying for another visa.
g.At (28) the first applicant explains why he did not enrol. He stated that he did not intend to spend money when his situation was uncertain while awaiting the decision of the Tribunal.
h.There are three (3) main aspects in the instant case where the Tribunal failed to correctly apply the law to the facts. And they are:
A.The applicant's personal ties to his home country as opposed to his ties here in Australia. This is stated at (35), (36), (37) and (38) of the decision.
(Al): As to the applicant's personal ties to his home country, the applicant stated, at (35):
i.That his mother, sister, brother-in-law, uncle and their families reside in Nepal.
ii.And at (36): In contrast to (i) above, the applicant stated that he has no personal ties in Sydney. However, he has some extended family in Adelaide and his wife has a cousin in Tasmania.
(A2)He stated at (37): that his family has land in Nepal, which is in his mother's name, as well as a bank balance ... "
(A3)And at (38): ·'As to his incentive to return to Nepal, the applicant stated that his in-laws and mother live there. He stated that he plans to live in Nepal temporarily and build a house for his mother who lives alone. When questioned about his plans to go to the USA and any obligations to look after his mother, he stated that later on he plans to take her to the USA with him."
(A4)The proposition in the quotation above, is not only a reasonable one but that (as stated below), the Tribunal was prepared to accept and did in fact accept that "such a claim has been lodged . .''
(A5)Having accepted that the application for migration to the USA had been lodged, and then not giving such finding, effect, causes "friction" between such finding and the negating effect of such finding. That is jurisdictional error.
B.Failure by the Tribunal to correctly apply the law to the evidence concerning their migration to the United States. This is discussed mostly at (52), (53) and (54) of the decision
(B1):In addition to paragraphs (52), (53) and (54) of the Tribunal's decision referred to above, dealing with the applicants' intention to migrate to the USA, paragraph (76), in this regard, is significant. That significance is encompassed in these words at (76): " .... his claim that his sister-in-law lodged an application on his behalf in October 2015, the Tribunal is prepared to accept that such a claim has been lodged ..... " (Emphasis added).
(B2):Having accepted that ··such a claim has been lodged" that the same paragraph (76) states: ·• ... The applicant's agent made submissions that such applications take 6 years." Such a period would take the applicant to October 2021. Having noted the agent's submission as to the length of time that such applications take to be processed and read in the context of the Tribunal's acceptance that the said application had been lodged, the Tribunal's adverse decision reflects both irrational and illogical assessment of the evidence before it and also in reaching the decision that it did reach for that reason.
C.Failure by the Tribunal to correctly apply the law to the facts as presented to the Tribunal. In that the factual circumstances in the instant case were such that it indicated clearly that the applicants intended genuinely to stay in Australia temporarily. There was abundance of evidence before the Tribunal to find accordingly. However, the Tribunal failed to do so. Consequently, the decision of the Tribunal involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal.
2. The failure by the Tribunal as stated in Ground 1 and the Particulars under that ground, make the decision of the Tribunal, legally an unreasonable decision.
Particulars
The applicant repeats the particulars in Ground one above.
THE APPLICANTS’ SUBMISSIONS
The applicant’s initial written submissions are difficult to follow, in that they merely repeat large chunks of the Tribunal’s written reasons with little in the way of analysis as to what particular aspect of the decision is infected with jurisdictional error. Indeed, it is not until page 6 of the 10 pages of submissions that the following appears “Now we are getting closer to the Amended grounds of application”.
In the final page of initial written submissions, it was submitted that the quotation set out clearly shows the situation the applicants both in respect of the ties to the home country and the preparations as evidenced by the information before the Tribunal to immigrate to the United States. It is then asserted that the decision of the Tribunal, on the evidence before it, was irrational and illogical.
The legal representative of the applicant goes on to state that the finding of the Tribunal was prepared to accept that the applicant’s sister-in-law lodged an application on his behalf in 2015 was a necessary finding in order to have exercised the jurisdiction in the manner contemplated by the statutory scheme. The failure to make a positive finding was material to the sense of depriving the applicant of the possibility of a successful outcome.
Following the matter being listed as short notice for hearing, the applicant filed, without leave of the Court, supplementary written submissions. These submissions relied upon Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (“Eros”) per Alsop CJ. It was submitted that the Tribunal fell into error in considering cl 500.212 (a) but not 500.212 (b) and (c).
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent noted to the extent that the amended application seeks review of the delegates decision on 1 March 2018, the Court has no jurisdiction as it is a “primary decision” for the purposes of s 476(2)(a) of the Act.
In terms of ground one, this alleges the Tribunal decision involved “incorrect application of the law to the facts”. There were three aspects, being the Tribunal’s assessment of the applicant’s personal ties to his home country; failure to correctly apply the law to the evidence concerning migration to the United States; and failure to apply the law to the facts as presented in relation to the applicant’s contention he genuinely intended to stay in Australia temporarily.
Although the ground purports to cavil with the Tribunal’s application of law, in essence, it seeks to impermissibly dispute factual findings made by the Tribunal and the weight afforded to various matters in assessing whether the applicant was a genuine temporary entrant.
The Tribunal correctly identified the relevant criteria for a subclass 500 visa and gave regard to Direction No. 69. The Tribunal comprehensively considered the value of the proposed course to the applicant’s future, his circumstances in Nepal and Australia and his immigration history.
It was submitted the contention in the first two complaints is about the weight the Tribunal attributed to various factors in Direction No 69. Complaints about weight go no more than to requesting impermissible merits review. It is clear that the Tribunal had regard to all of the documents provided by the applicant and his oral evidence provided to the hearing
The Tribunal simply found that the applicant had not provided sufficient evidence to demonstrate he was a genuine temporary entrant. The applicant’s disagreement with the decision does not amount to jurisdictional error
Ground two alleges the Tribunal’s decision was unreasonable for the reasons stated in ground one. As ground one cannot be sustained, it was submitted ground two must necessarily fail. In any event, it was submitted the Tribunal decision did not lack an evident and intelligible justification: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408.
In relation to the reliance on Eros, the applicant’s submission is misconceived. The complete answer can be found in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 (“Dait”) at [33]-[36]. In this matter, the Full Court found that if an applicant did not satisfy cl 500.212 (a), it was not necessary to consider if they satisfied cl 500.212 (b) and (c).
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 of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is well established the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [28], or where a decision has been made that lacks an “evident and intelligible justification”: Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
In relation to ground one, particular A cavils with the findings of the Tribunal as to the applicant’s ties to his home country. Particular B, asserts the Tribunal failed to correctly apply the law to the evidence concerning the proposed migration of the applicant to the United States. Particular C asserts that in the factual circumstances of the case, there were there was evidence that the applicant is genuinely intended to stay in Australia temporarily and the Tribunal did not find accordingly. This apparently involves an error of law.
In each case, the Court is satisfied that the particulars relied upon, although purporting to assert an error of law, are nothing more than an attempt at impermissible merits review. The matters relied upon in particulars A and B are complaints about the weight the Tribunal attributed to the various factors contained in Direction No 69. The Court is satisfied that the Tribunal accepted the applicant had personal ties in Nepal, however, it was entitled to and gave weight to the fact that the applicant spent 11 years in Australia only departed on some four occasions. The Court is satisfied that this was a finding that was opened to the Tribunal on the evidence that was before it and for the reasons it gave. The Court is also satisfied the Tribunal properly considered the evidence as to proposed or possible future immigration to the United States. The fact that the applicant disagrees with the factual findings of the Tribunal amounts to no more than vehement disagreement with the outcome, not jurisdictional error.
Particular C complains that the Tribunal did not give sufficient weight to the evidence which it is claimed:
“indicated clearly the applicants intended generally to stay in Australia temporarily. There was an abundance of evidence before the tribunal to find accordingly. However the Tribunal failed to do so”.
Again, this particular amounts to no more than a blatant attempt to invite the Court to undertake impermissible merits review. The fact that the applicant disagrees with the factual findings of the Tribunal does not amount to jurisdictional error. The Court is satisfied that the Tribunal was entitled to come to the outcome that it did based on the evidence that was before it and for the reasons it gave. Ground one has no merit.
Ground 2 is a bland assertion of legal unreasonableness by reference to the particulars of Ground 1. The Tribunal decision was entirely orthodox in that it correctly instructed itself as to the relevant law and Ministerial Direction No 69. The Tribunal then discussed the evidence with reference to the matters it was required to consider. The conclusions it reached were based on the evidence before it and for the reasons it gave. There is nothing unreasonable, irrational or illogical in the conclusions arrived at by the Tribunal Ground 2 has no merit.
In terms of the reliance on Eros, this is entirely misplaced. The latter Full Court case of Dait is binding authority that there is no requirement to consider cl 500.212(b) and (c) in circumstances where the facts do not support a positive finding pursuant to cl 500.212(a).
The Tribunal comprehensively considered all the available evidence, including the lengthy period of time the applicant had spent in Australia and his proposed further study. The fining that he had no real interest in further study was seeking to use further study to achieve a migration outcome was open to the Tribunal on the evidence before it.
The application has no merit and is dismissed
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Deputy Associate:
Dated: 9 June 2023
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