Phuyal v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1108
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Phuyal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1108
File number(s): SYG 1604 of 2019 Judgment of: JUDGE LAING Date of judgment: 30 November 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal misconstrued, or otherwise relevantly erred in its reasoning in relation to, cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 836
Division: Division 2 General Federal Law Date of hearing: 12 October 2023 Place: Sydney Number of paragraphs: 37 Counsel for the Applicant: Mr J Young Solicitor for the Applicant: Shamser Thapa & Associates Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1604 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RABINDRA PHUYAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
BACKGROUND
The applicant is a citizen of Nepal. He applied for the student visa that is the subject of these proceedings on 12 May 2017.
The Delegate refused the application on 28 June 2017, on the basis that the applicant did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant applied for review by the Tribunal on 14 July 2017.
On 12 March 2019, the applicant appeared before the Tribunal at a hearing.
On 28 May 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the evidence before it, the criterion in issue and the effect of Direction No. 69 at [1]-[21] of its decision. The Tribunal then reasoned under the heading the “Applicant’s circumstances in his home country” at [22]-[35] where it made the following findings:
(a)The Tribunal made no adverse findings relating to cl 9(d) and (e) of Direction No. 69, having regard to the applicant’s evidence that there was no political or civil unrest in his home country and that he had no military service commitments (at [31]).
(b)After considering country information regarding the economic situation in Nepal, the Tribunal found the applicant’s stated intention to start a business there to be unconvincing, given the lack of details that had been provided. However, the Tribunal made no adverse findings in relation to cl 9(c) of Direction No. 69. In this regard, the Tribunal accepted that the applicant had an employment opportunity with his brother’s business (at [33]).
(c)The Tribunal found that there was insufficient evidence regarding the applicant’s circumstances relative to those of others in Nepal. Accordingly, the Tribunal made no adverse findings in relation to cl 10 of Direction No. 69 (at [34]).
(d)The Tribunal was satisfied with the applicant’s reasoning for not undertaking his study in Nepal. The Tribunal also found that the applicant had personal ties to Nepal, including his family, which may provide some incentive for return. The Tribunal therefore made no adverse findings regarding the other considerations in cl 9 of Direction No. 69 (at [35]).
The Tribunal made the following findings under the heading “Applicant’s potential circumstances in Australia” at [36]-[44]:
(a)The Tribunal considered that there was no evidence of ties with Australia which would present as a strong incentive for the applicant to remain. The Tribunal therefore made no adverse findings in this regard (at [36]).
(b)The Tribunal found cl 11(d) of Direction No. 69 not to be relevant as there was no evidence that the applicant was in a relationship of concern (at [37]).
(c)The Tribunal considered by reference to cl 11(b) and (c) of Direction No. 69 that the applicant’s pattern of enrolment raised concerns that the applicant was using the visa programme to maintain ongoing residence (at [38]-[43]). Although the Tribunal accepted that the applicant’s family had undergone hardship as a result of the 2015 Nepalese earthquake, the Tribunal considered that the applicant’s lack of enrolment from November 2017 until January 2019 was not consistent with a genuine interest in studying.
(d)The Tribunal was concerned with the evidence of the applicant in relation to cl 11(e) of Direction No. 69. In particular, the Tribunal was concerned that the applicant was unable to remember the names of education providers at institutions where he had been enrolled and considered that the applicant had a relatively poor knowledge about his education providers (at [44]).
The Tribunal then reasoned under the heading “Value of the course to the applicant’s future” at [45]-[48] as follows:
(a)The Tribunal considered that the applicant’s enrolment history indicated that the applicant had “enrolled in his current course of study for a reason other than his stated one of obtaining the qualification to return to Nepal to assist his brother’s business” (at [45]-[47]).
(b)The Tribunal found that the applicant was enrolled in a course that was not consistent with his level of education, and was likely to offer limited incremental value when considered with the other qualifications he had obtained over more than ten years since arriving in Australia (at [48]).
The Tribunal made the following findings under the heading “Applicant’s immigration history” at [49]-[53]:
(a)The Tribunal made no adverse findings regarding cl 14(a)(i)-(ii) and cl 14(b)(i), (ii) and (iv) of Direction No. 69. The Tribunal accepted the applicant’s evidence regarding his immigration history, including his compliance with visa conditions and the lack of prior visa refusal (at [49]-[50]).
(b)However, having regard to the amount of time that the applicant had spent in Australia and recent enrolment history, the Tribunal was not satisfied that the applicant was “not simply now enrolled in a further short, inexpensive course in order to gain a Student visa with the primary objective of maintaining ongoing residence in Australia” (at [51]-[53]).
The Tribunal found that there were no other relevant matters that needed to be considered (at [54]-[55]). The Tribunal then reasoned as follows at [56]-[58]:
56.In making its decision, the Tribunal has considered all of the evidence before it, including that the applicant is currently enrolled in a course of study, in which he enrolled on 21 January 2019, less than a fortnight after receiving the Tribunal’s s.359(2) letter, and that this course is at a lower level than the Advanced Diploma, which he was enrolled to undertake at the time he made his current visa application to the Department. The Tribunal has considered that the applicant has family ties in Nepal, has the potential to be offered work in his brother’s company, and has indicated that he intends to return to Nepal following the completion of his current course, however for the reasons outlined above, the Tribunal does not accept that he is undertaking the current study for the reasons he claims, but rather has recently enrolled in another course as a pathway to maintain residence in Australia.
57. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
58. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
The Tribunal therefore found that the applicant was unable to meet the criteria for grant of the visa and affirmed the Delegate’s decision (at [59]-[60]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings before this Court through an application filed on 28 June 2019. The applicant filed an amended application on 6 September 2023 containing the following grounds:
4.The Second Respondent made jurisdictional error by making error of law or failing to exercise jurisdiction in relation to clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 or Ministerial Direction No. 69.
Particulars
(a)The Second Respondent stated at paragraphs [33], [34], [35], [36] and [50] that in respect of matters arising under clause 500.212 (a) or the Ministerial Direction it made no adverse findings. It failed to consider whether to make any findings favourable to the Applicant.
5.The Second Respondent made jurisdictional error by regarding or confusing the statutory requirement of an intention genuinely to stay in Australia temporarily with a non-statutory test of whether the Applicant's activity and behaviour was that of a “genuine student”.
Particulars
(a)At paragraph [42], the Second Respondent considered the issue of a “genuine student” and “genuine interest in studying” as if genuine student was the relevant statutory criterion.
6.The Second Respondent made jurisdictional error at [56] by making a decision based upon a short course which the Applicant was currently undertaking as indicating that he was enrolled as pathway to maintain residence in Australia.
Particulars
(a)If the meaning of the Second Respondent was that the short course which the Second Respondent had stated was of “limited incremental value” to his previous study meant that this was assisting to obtain permanent residence, this was entirely unexplained and there was no active intellectual foundation forced at finding.
(b)If the meaning of the Second Respondent was that for the duration of the course the Applicant would maintain and prolong his temporary stay in Australia, this would not to satisfy 500.212 (a).
(As per the original)
Ground 4
The first ground relied upon by the applicant (which was identified as ground 4) contended that the Tribunal made an error of law or failed to exercise jurisdiction. This was said to have occurred by the Tribunal failing to consider whether to make any findings favourable to the applicant in its assessment at [33] to [36] and [50].
At [33] to [34], the Tribunal stated that it had made no adverse findings regarding cl 9(c) or cl 10 of Direction No. 69, which required consideration of economic incentives for the applicant not to return to his home country, as well as his circumstances in his home country relative to others. The Tribunal did not consider that it had sufficient evidence regarding the latter. It is therefore not apparent if or why the Tribunal may have been expected to have taken it into account favourably. In relation to the former, the Tribunal accepted that the applicant had an opportunity of employment with this brother’s business in Nepal. I accept the Minister’s submission that this was taken into account in a manner favourably to the applicant, even if the word “favourable” was not used. This was expressly considered against the matters that the Tribunal weighed against the applicant in its reasoning at [56]-[57] of its decision.
At [35], the Tribunal accepted that the applicant had provided reasonable reasons for not undertaking the study in his home country and that he had some personal ties to Nepal, including his family, which may provide some incentive for him to return after completion of his course. The Tribunal expressed that it had therefore not made any adverse findings regarding such matters that fell for consideration under cl 9 of Direction No. 69. The applicant submitted that these were matters that could have been taken into account in his favour. I accept this. However, I find that this is what the Tribunal effectively did. Whilst the Tribunal’s language was expressed somewhat unfortunately in the negative, this was in a context where the Tribunal was considering various matters that may tend towards or against the applicant meeting or failing to meet the genuine temporary entrant criterion in cl 500.212(a). The Tribunal ultimately found that this criterion was not satisfied. However, in coming to this conclusion it is apparent, on a fair reading, that the Tribunal weighed against this potential finding the matters that it considered at [35] of its decision. This, in effect, took them into account in a manner that was favourable to the applicant, even if this precise form of language was not used.
I have come to a similar conclusion in relation to [36] and [50] of the Tribunal’s decision. At [36], the Tribunal considered that there was no evidence of ties with Australia that would provide a strong incentive for the applicant to remain. The Tribunal expressed that it had made no adverse findings in this regard. Whilst the Tribunal did not expressly state that it had taken this into account in a manner favourably to the applicant, I consider that this is what the Tribunal effectively did by making this finding in the applicant’s favour at [36]. At [50], the Tribunal accepted the applicant’s evidence regarding his immigration history, including his compliance with visa conditions and the lack of prior visa refusal. Whilst the Tribunal did not expressly state that it had considered this in a manner favourable to the applicant, it is apparent that this is what the Tribunal did. I do not accept that this is negated by the Tribunal’s reference to having made no adverse findings in this regard, by reference to cl 14(a) and 14(b)(i), (ii) and (iv) of Direction No. 69.
Having regard to the above, I am not persuaded that the Tribunal fell into relevant error by failing to consider whether the considerations relied upon were capable of operating favourably to the applicant. The Tribunal appears to have taken the applicant’s circumstances in his home country into account in a manner that was generally favourable to the applicant at [22]-[35]. In particular, the Tribunal appears to have given particular weight to the applicant’s family ties and potential for work in its reasoning at [56] of its decision. In relation to the applicant’s potential circumstances in Australia and immigration history, there were matters that the Tribunal appears to have considered in a manner favourable to the applicant, as well as matters that the Tribunal regarded unfavourably at [36]-[44] and [49]-[53]. The Tribunal appears to have regarded the value of the course to the applicant’s future in a manner that was generally unfavourable at [45]-[48].
Ground 4 is therefore unable to succeed.
Ground 5
The second ground relied upon by the applicant (which was identified as ground 5) contended that the Tribunal misapplied the statutory test under cl 500.212(a) by confusing it with a requirement that the applicant be a genuine student. This was submitted to have occurred by reference to [42]-[43] of the Tribunal’s decision, which were as follows:
42. The Tribunal finds that the applicant’s recent enrolment history is not consistent with the activity and behaviour of a genuine student. The Tribunal notes that even though the applicant’s current visa application was refused on 28 June 2017, under the applicant’s Bridging visa, a copy of which is on the Department’s file, he was able to continue studying, which would have allowed the applicant to complete the Advanced Diploma of Leadership and Management by March 2019. As noted above, the applicant indicated that his family were unable to support him to undertake the Advanced Diploma of Leadership and Management, which is why he has now enrolled in a lower level course. The Tribunal notes the applicant’s stated reasons, however the Tribunal finds that the applicant was more likely motivated to enrol in the Diploma of Leadership and Management in order to satisfy the enrolment requirement prior to attending a hearing at this Tribunal. Whilst the Tribunal accepts that the applicant’s family has undergone hardship as a result of the 2015 Nepalese earthquake and associated aftershocks, the Tribunal finds that the applicant’s lack of enrolment from November 2017 until January 2019 is not consistent with the activity and behaviour of someone who has a genuine interest in studying.
43. The applicant’s pattern of enrolment therefore raises concerns for the Tribunal that he may be using the student visa programme to circumvent the intentions of the migration programme and to maintain ongoing residence (clauses 11(b) and (c)).
The applicant observed that the test of whether or not the applicant was a “genuine student” was not the test to be applied under cl 500.212(a), relying upon Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 836at [41]-[43] per Judge Riley and Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros) at [13] per Allsop CJ. This is correct. Clause 500.212(a) “is concerned and only concerned with the intention as to length of stay”: Eros at [22].
However, this does not mean that the question of whether or not the applicant had genuinely applied for the visa for the reasons that he claimed (i.e. in order to study) was necessarily irrelevant to the Tribunal’s task under cl 500.212(a). Whilst the question for the Tribunal under cl 500.212(a) was the intended duration of the applicant’s stay, many of the matters raised under Direction No. 69 were directed towards assessing that intention within the context of the applicant’s claimed intentions towards study (such as the requirement that the value of the course to an applicant’s future be considered). The rationale behind this is obvious. A person seeking a visa for reasons other than the temporary purpose claimed may have other intentions towards the duration of their stay in Australia. This is reflected in cl 14(b)(iii) of Direction No. 69, which required consideration of “whether the [visa] may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses”.
I am not persuaded that the Tribunal misunderstood or misapplied the test under cl 500.212(a) by reference to whether or not the applicant was a “genuine student”. Although this phrase was used at [42], the finding made was that the applicant’s “recent enrolment history [was] not consistent with the activity and behaviour of a genuine student”. The Tribunal also considered that the applicant’s lack of enrolment from November 2017 to January 2019 was “not consistent with the activity and behaviour of someone who has a genuine interest in studying”.
The Tribunal did not use these matters to supplant or impermissibly extend the test under cl 500.212(a). Rather, the Tribunal appears to have considered these matters as being capable of informing its assessment under cl 500.212(a) regarding the length of the applicant’s intended stay in Australia. This appears to have been in a manner consistent with Direction No. 69 and the correct statutory test.
I am therefore not persuaded that ground 5 is able to succeed.
Ground 6
The third ground relied upon by the applicant (which was identified as ground 6) contended that the Tribunal made jurisdictional error at [56] of its decision “by making a decision based upon a short course which the Applicant was currently undertaking as indicating that he was enrolled as pathway to maintain residence in Australia”.
The applicant submitted that if the Tribunal considered that the course, which it regarded as a short course of “limited incremental value”, was assisting the applicant to obtain permanent residence, then this was not adequately explained. If the Tribunal regarded the applicant as prolonging his temporary stay for the duration of the course, then this would not meet cl 500.212(a).
The Tribunal’s reasoning at [56] is set out above. The applicant submitted that this reasoning did not adequately engage with the question of the intended length of the applicant’s stay in Australia.
I accept that the Tribunal did not expressly reason that the applicant’s course provided a clear pathway towards permanent residence in Australia. However, I am not persuaded that the Tribunal was obliged to reason in this manner. An intention to remain in Australia other than temporarily was capable of being manifested through the pursuit of such a pathway. Alternatively such an intention was capable of being manifested through the pursuit of temporary visas that may successively sustain continued residence in Australia, notwithstanding their temporary nature. It is this latter potential manifestation of intention with which the Tribunal appears to have been concerned.
This is indicated by [53] and [56] of the Tribunal’s reasoning. At [53], the Tribunal considered that, “[g]iven the amount of time which the applicant ha[d] spent in Australia” and his enrolment history, it was “not satisfied that the applicant ha[d] not simply now enrolled in a further short, inexpensive course in order to gain a Student visa with the primary objective of maintaining ongoing residence in Australia”. This was in considering cl 14(b)(iii) of Direction No. 69, which required consideration of “the amount of time the applicant has spent in Australia and whether the [visa] may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses”. At [56], the Tribunal considered that the applicant had enrolled in the course “as a pathway to maintain residence in Australia”.
Although the Tribunal did not, in terms, state in these paragraphs that it was not satisfied that the applicant was not using the visa program, or enrolment in this particular course, in pursuit of an intention to remain in Australia other than temporarily, on a fair reading I find that this was the intended meaning of the Tribunal’s reasoning. That reasoning was comprehensible. It must be understood within the context of the Tribunal’s conclusion at [57] that the Tribunal was “not satisfied that the applicant intends genuinely to stay in Australia temporarily”. I have not been persuaded that it was relevantly closed to the Tribunal to reason on this basis. I therefore accept the Minister’s submission that there is insufficient basis for finding that this test was misconstrued or improperly applied in the circumstances of this case.
Ground 6 is therefore unable to succeed.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 30 November 2023
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