Pashapu v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 723
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pashapu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 723
File number(s): MLG 3205 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 18 August 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicant could satisfy the genuine temporary entrant criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – consideration of the applicant’s circumstances in Australia and his home country –where applicant had considerable study gap – where applicant had multiple enrolments but failed to complete any courses since arrival in Australia – alleged failure of the Tribunal to consider the applicant’s study progress – alleged failure of the Tribunal to afford procedural fairness – No jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1994 (Cth) Schedule 2, cll 500.2, 500.212,
Cases cited: Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 14 August 2023 Date of hearing: 14 August 2023 Place: Melbourne Applicant: In person Solicitor for the Respondents:
Clayton Utz
ORDERS
MLG 3205 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAVEEN PASHAPU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
18 August 2023
THE COURT ORDERS THAT:
1.The application filed on 25 October 2018 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.
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 SYMONS:
INTRODUCTION
By an application filed on 25 October 2018, the applicant seeks judicial review of a decision of the second respondent (the Tribunal) made on 8 October 2018. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act). The Minister opposes the application. The Tribunal entered a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of India who arrived in Australia on 17 November 2014. The applicant was previously the holder of a student visa that was granted for the purpose of completing a Master of Technology and was valid until 15 March 2017. On 14 March 2017, the applicant made an application for the visa to study a Master of Professional Accounting.
Pursuant to cl 500.2 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) it was a condition for the grant of the visa that the applicant satisfy a number of primary criteria, including what is referred to as the “genuine temporary entrant” criterion which is contained in cl 500.212(a) and expressed as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, 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
(iv) any other relevant matter; and
(b) …
(c) …
On 26 May 2017, the (then) Department of Immigration and Border Protection (the Department) wrote to the applicant with a request for more information concerning his application for the visa (CB 49-63). In particular, the Department requested evidence and/or information regarding:
(a)The applicant’s compliance with visa condition 8202 (that was attached to his previous student visa) which required him to achieve satisfactory course progress in his registered course of study. The correspondence noted that the applicant had been reported by his education provider for not achieving satisfactory course progress; and
(b)The applicant’s ability to satisfy the Genuine Temporary Entrant criterion and demonstrate his intention to comply with any conditions subject to which the visa may be granted.
On 22 and 24 June 2017, the applicant’s migration agent responded to the request for information by providing a cover letter attaching payment invoices for “three semesters’ fee in total”, statements from the applicant addressing the matters raised by the Department, and a “written explanation” dated 22 June 2017 attaching further documents (CB 64-88).
On 14 July 2017, a delegate of the Minister refused to grant the applicant the visa on the basis that he was not satisfied that the applicant genuinely intended to stay temporarily in Australia, and therefore cl 500.212 was not met (CB 90-99).
On 31 July 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 100-101).
On 13 August 2018, the Tribunal invited the applicant to provide further information in writing about his proposed course of study and his entry and stay in Australia as a student. The applicant was invited to provide this information through his completion of a Request for Student Visa Information questionnaire (CB 125-145).
On 27 August 2018, the applicant returned the completed questionnaire, together with a Confirmation of Enrolment document that referred to the applicant’s enrolment in a Diploma of Business for the period 10 September 2018 to 8 September 2019 and an Advanced Diploma of Business for the period 28 October 2019 to 26 October 2020 and a written statement directed at the Genuine Temporary Entrant Criterion (CB 146-165).
On 6 September 2018, the applicant was invited to attend a hearing before the Tribunal on 27 September 2018 and was requested to provide (CB 166-182):
(a)a current Confirmation of Enrolment or other documents that showed he was currently enrolled in a course of study;
(b)documents that showed the applicant’s past studies in Australia, as well as documents evidencing any work related to past or intended studies in Australia;
(c)a written statement addressing the issue of whether the applicant was a genuine applicant for entry and stay as a student (noting that the applicant’s case would be assessed against Ministerial Direction No. 69, a copy of which was provided to the applicant).
On 21 September 2018, the applicant provided written submissions to the Tribunal (CB 183-188).
On 27 September 2018, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of his migration agent and an interpreter in the English and Telugu languages (CB 194 -196).
THE DECISION OF THE TRIBUNAL
On 8 October 2018, the Tribunal affirmed the delegate’s decision to refuse the applicant the visa and published a written statement of decision and reasons (Reasons) (CB 204-209).
The Tribunal identified the issue on review as being whether the applicant genuinely intends to stay in Australia temporarily (Reasons, [7]).
After reproducing cl 500.212 the Tribunal noted that in considering whether the applicant satisfied cl. 500.212(a), it was required to have regard to Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” made under s 499 of the Act (Reasons, [9]). The Tribunal noted that this Direction required it to have regard to a number of specified factors in relation to:
(a)the applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to the applicant’s future;
(b)the applicant’s immigration history;
(c)if the applicant was a minor— the intentions of a parent, legal guardian or spouse of the applicant; and
(d)any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Tribunal noted that it had discussed with the applicant at the hearing the considerations outlined in Ministerial Direction No. 69 (Reasons, [11]).
The Tribunal noted (by reference to the decision record produced by the delegate) that at the date of (the delegate’s) decision, the applicant had not completed any courses since arriving onshore and had a study gap from 18 February 2016 until 15 August 2016 (Reasons, [14]).
The Tribunal referred to the applicant’s evidence that he was currently enrolled in a Diploma of Business which began on 10 September 2018 and was due for completion on 8 September 2019 and that he was enrolled in an Advanced Diploma of Business subsequent to that. The Tribunal also referred to information derived from the questionnaire to the effect that since his arrival, the applicant had been enrolled in a Master of Technology (Software Engineering) (cancelled in 2015) and a Master of Professional Accounting (cancelled in 2015) (Reasons, [16]-[17]).
The Tribunal then addressed itself to the considerations identified in Ministerial Direction No. 69.
Under the heading “Circumstances in home country” the Tribunal referred to the applicant’s statement that he came to Australia because he wanted to study there and because the weather in Australia is similar to that in India and recorded its concern that the applicant was not able to articulate any particular reason why he wanted to study in Australia (Reasons, [18]).
The Tribunal referred to the applicant’s evidence that he had a father, mother and brother back in India who he last saw in November 2015 and with whom he spoke to on FaceTime three to four times per week (Reasons, [20]).
The Tribunal noted that there was no relevant evidence regarding the following factors indicated by Ministerial Direction No. 69 and that accordingly it made no findings against the applicant based on: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, and the applicant’s circumstances in the home country relative to others in that country (Reasons, [21]).
Under the heading “Circumstances and study in Australia and the value of the proposed course to the applicant’s future”, the Tribunal noted with concern the applicant’s evidence that he had no family members in Australia and that he had been back to his home country only once since his arrival in 2014, being in November 2015. The Tribunal considered this to be an indication that the extent of the applicant’s personal ties to his home country did not serve as a significant incentive for him to return there (Reasons, [22]).
The Tribunal referred to the applicant’s evidence that he was working up to 20 hours a week earning $24AUD per hour as a cleaner (from June 2015 until the present) and found that these economic circumstances would present as a significant incentive for the applicant not to return to his home country (Reasons, [24]).
The Tribunal noted that when asked to offer an explanation as to why he had been unable to study his Master of Technology and Master of Professional Accounting, the applicant had referred to “bad treatment” by the educational institutions but had been unable to expand on what he meant by this. The Tribunal also referred to the inability of the applicant to explain the purpose of his current enrolments (Diploma of Business and Advanced Diploma of Business) save that he wished to study these diplomas and to again proceed to study for a Masters (Reasons, [25]-[26]).
The Tribunal noted that it had confirmed with the applicant that he had not studied between 5 August 2015 until his current enrolment on 10 September 2018, and that he had not undertaken any studies between February and August 2016. The Tribunal found that the applicant had been in breach of his visa condition 8202 during this period of time and that this was evidence that the applicant was using the student visa program to circumvent the migration program (Reasons, [27]).
The Tribunal noted that it had invited the applicant to expand upon his material provided to the Tribunal to the effect that he had experienced difficulty with study in Australia because of treatment by his education providers and because of an assault in 2015. The Tribunal noted that the applicant had not taken up this opportunity and on this basis did not give much weight to this evidence and explanations (Reasons, [28]).
The Tribunal referred to a letter from the applicant’s psychologist dated 19 June 2017 which contained an opinion that the applicant was suffering from moderate levels of anxiety and mid-level depression during his time in Australia and on which the applicant sought to rely to establish that he had been the victim of an assault in August 2015. The Tribunal was concerned by the evidence as the applicant had not sought to comment any further in relation to the matter (of the assault) and the letter had been dated almost two years after the actual date of the alleged assault. The Tribunal determined to give no weight to this (the assault) as a reason for the applicant’s study history in Australia (Reasons, [30]).
Likewise, the Tribunal placed no weight on the applicant’s statement to the delegate that he had been attacked by “an African near my home at night” or his explanation that his low level of academic achievement in Australia had been due to the actions of academic authorities who had tried to exclude him. The Tribunal considered that the applicant had provided no specific evidence regarding these matters nor had he been able to discuss them with the Tribunal (Reasons, [31]).
The Tribunal found that the applicant was seeking to undertake courses (Diploma and then Advanced Diploma of Business) that were consistent with his current level of education (Bachelor of Information Technology), that would not assist the applicant to obtain employment or improve employment prospects in India and were not relevant to the applicant’s past or proposed future employment either in India or in a third country (Reasons, [32]).
The Tribunal recorded its concern that the applicant had not been able to complete any enrolments in Australia since his arrival in 2014 and doubted whether he would be successful in his current enrolments which would take him until October 2020, at which time he wanted to restart his Master of Technology (Reasons, [34]).
The Tribunal found, based on all of the above, that the applicant was using the student visa system to circumvent the migration program and was not a genuine applicant for entry and stay in Australia.
The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and that accordingly, he did not meet cl 500.212(a) or the criteria for the grant of the visa (Reasons, [36]-[38]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 25 October 2018 contains grounds described as follows:
1.This is an application pursuant to s 476 of the Migration Act 1958 for judicial review of a decision of the Administrative Appeals Tribunal dated 8th October 2018. Tribunal has affirmed my visa (500 subclass) refusal decision under s. 65 of the Act. The criterion is clause 500.212.
2.The delegate had refused to grant my student visa (500 Subclass) because delegate has believed that I did not satisfy the requirements of genuine student requirements according to s. 69 Ministerial direction.
3.I believe the decision has been made by Delegate and Tribunal affected by jurisdictional error because the Tribunal misunderstood and misapplied the criterion, because of Paragraph 14 and Paragraph 15 of tribunal decision they contradicting each other.
4.The Tribunal misunderstood the situation of me even though I had explained the situation of the gap and 8202 breach, I did not breach the 8202 condition instead of studying masters I was enrolled in vocational education. The reason behind I shard (sic) to find the admission in Master’s program because of SSVF and SVP issues.
5.The way case officer has processed shows that case officer misunderstood and misapplied the law on me in haste, also tribunal did same thing in my case, they should have discussed about or applied the condition “8516 or 8203”, differently they have applied the 8202 condition.
6.Also the Tribunal failed to consider my situation and also failed consider my study progress since I have started studying the vocational education.
7.The Tribunal erred because member did not even look in to delegate decision carefully, member did not understand our submission as “the gap” should not be used in my case because of I had enrolled in vocational education and maintained the enrolment during my stay in Australia.
8.Also I have studied and paid the fee of Master’s program, and vocational education fee has been paid fully as well and completed as well, those information weren’t considered by delegate or tribunal member. It seems to me that I am getting the negative decisions because of I am studying vocational education.
9.I am well-educated person come to hearing and exploring all my things happened to my life to study in Australia, reason has been explained to the tribunal and also to the delegate. But there is no procedural fairness during the hearing.
10.Therefore I am bringing the tribunal decision which has jurisdictional error to the Federal circuit court of Australia to get served the right justice in my case.
On 24 July 2020, a Registrar of this Court made orders progressing the matter to final hearing. They included (in respect of the applicant) that by 17 July 2023, any amended application and written submissions be filed. The applicant did not file any material responsive to this order.
On 31 July 2023, the Minister filed written submissions.
The final hearing of the application took place on 14 August 2023. The applicant appeared in person and was offered the assistance of an interpreter in the English and Telugu languages. The Minister was represented by lawyer Mr Simpson.
The applicant was given an opportunity to expand upon his grounds of review noting that to the extent that these grounds sought to impugn the decision of the delegate the Court did not have jurisdiction to entertain them and that the asserted grounds appeared to identify the following principal complaints:
(a)The Tribunal placed adverse weight on a “gap” in the applicant’s study history;
(b)The Tribunal erred by finding that the applicant had breached visa condition 8202;
(c)The Tribunal failed to consider the applicant’s study progress since he started studying vocational education;
(d)The Tribunal failed to take into account that the applicant had paid the fee of the Master’s program and the fee for the “vocational education”;
(e)The Tribunal denied the applicant procedural fairness during the hearing.
CONSIDERATION
Adverse weight on a “gap” in the applicant’s study history and finding that applicant had breached visa condition 8202
At hearing, the applicant was not able to further elaborate on this argument save that he told the Court that he wanted to study a Master’s degree but he had to go into the Advanced Diploma instead, just to maintain his visa in Australia.
The Minister submitted that the Tribunal did not err in its understanding or application of the criteria for the grant of the visa. On the applicant’s own evidence, he did not undertake any studies between February and August 2016. Further, at [25] of the Reasons, the Tribunal referred to the cancellation of the Master of Technology and the Master of Professional Accounting courses in 2015.
Given that condition 8202(1) requires the visa holder to be enrolled in a full-time registered course of study, it was open on the applicant’s own evidence for the Tribunal to find that he had breached that condition on his previous subclass 573 visa. That finding was said to be of obvious relevance to the factors for the Tribunal to consider in Direction No. 69, especially the value of the course to the applicant’s future and the applicant’s immigration history.
The Minister submitted that the Tribunal had considered the applicant’s explanation, and the submissions of his representative, regarding the study gap and the applicant’s poor study record (refer Reasons, [28]-[31]). At the hearing, the applicant did not wish to expand on the material previously provided to the Tribunal. It was therefore open to the Tribunal to place little weight on these explanations. To the extent that the applicant sought to contend that the Tribunal should have reached a different conclusion, the Court should reject this argument as impermissible merits review.
I am not persuaded that the Tribunal erred in the way that it approached the issue of the gap in the applicant’s study. The evidence before the Tribunal comfortably supported a finding both that there was a substantial period of time during which the applicant was not engaged in study, and that the consequences of this, or more especially, the cancellation of the Master of Technology and the Master of Professional Accounting course warranted a finding that the applicant had breached condition 8202(1) that had attached to his earlier student visa.
This last finding in particular was of direct relevance to an understanding of the applicant’s immigration history, this being a factor identified in Ministerial Direction No. 69 as a matter that should be taken into account by the Tribunal.
Failure of Tribunal to consider the applicant’s study progress since he started studying “vocational education” and to take account of fees paid for “Masters program”
The applicant confirmed that his reference to “vocational education” was a reference to his enrolment in the Diploma of Business and Advanced Diploma of Business. He was not otherwise able to elaborate on this ground of review.
The Minister submitted that the Tribunal had considered the applicant’s study and enrolment in the Diploma of Business (refer Reasons, [26] and [32]-[33]). The Tribunal found that the applicant was not able to explain the purpose of his current enrolments, that these enrolments would not assist the applicant to obtain employment or improve employment prospects in his home country, and that these enrolments were not relevant to the applicant’s past or proposed future employment. It was open to the Tribunal to find these matters weighed against the applicant genuinely intending to stay in Australia temporarily (Reasons, [36]).
As far as the applicant alleged error in the Tribunal’s consideration of his study and payment of a fee for a “Master’s program”, the Minister noted that the Tribunal had considered the applicant’s evidence regarding his Masters’ studies at [25] of the Reasons. The applicant did not complete these two courses, both of which were cancelled in 2015. It was open to the Tribunal to find that the applicant’s poor record of study weighed against him genuinely intending to stay in Australia temporarily.
The short answer to this complaint is that the significance of the applicant’s enrolment in the Diploma of Business and the Advanced Diploma of Business, or the characterisation of the courses as “vocational education” was not a matter identified by the applicant in his written material that was before the Tribunal or, apparently, in his oral evidence and argument to the Tribunal. The Tribunal was not obliged to grapple with a submission that was not made.
Furthermore, at the time of the Tribunal hearing (on 27 September 2018), the applicant had been enrolled in the Diploma of Business for a period of just over two weeks. Unsurprisingly there was no material before the Tribunal to enlighten it on the applicant’s progress in that course.
The failure of the Tribunal to consider the payment of course fees by the applicant is likewise unobjectionable. While it is the case that amongst the material provided by the applicant to the Department (and then Tribunal) was receipts for payment of course fees, the applicant did not identify the significance of this material and it is not apparent how evidence of course payments bears on the dispositive issue of whether the applicant satisfied cl 500.212(a) of Schedule 2 to the Regulations. It was not in question that the applicant had been enrolled in the two Master courses. The concern for the Tribunal was the maintenance of those enrolments.
Denial of procedural fairness
The applicant, when invited to tell the Court what had been procedurally unfair about the Tribunal decision, explained that his concern was with the outcome of the Tribunal decision; he was not satisfied with the decision made to refuse him the visa.
The Minister submitted that there was no denial of procedural fairness in the decision or approach of the Tribunal. The applicant was said to have been on notice from when the matter was before the delegate that the issue was whether he genuinely intended to stay in Australia temporarily, as required by cl 500.212(a). The applicant was invited to provide further supporting information prior to the hearing, which he did. The applicant was invited to attend a hearing, which he did. The Tribunal therefore met each of its codified procedural obligations contained in Part 5, Division 5 of the Act.
The applicant on his own admission is concerned with the substance of the Tribunal decision rather than matters of procedure. In a review jurisdiction that is concerned with the identification of jurisdictional error this complaint cannot succeed. In any case, I am satisfied that the Tribunal complied with its obligations of procedural fairness in the manner identified by the Minister in his submissions. The dispositive issue of the applicant’s ability to satisfy cl 500.212(a) was a feature of the decision of the delegate, the communications passing between the Department and the applicant and then the Tribunal and the applicant and was a matter ventilated with the applicant by the Tribunal during the hearing.
DISMISSAL
For the reasons which I have given above, I order that the applicant’s application filed on 25 October 2018 be dismissed.
I will order that the applicant pay the Minister’s costs of the proceeding fixed in the sum of $7,467.00.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 18 August 2023
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