Pokharel v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 686
•1 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pokharel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 686
File number(s): MLG 2838 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 1 August 2024 Catchwords: MIGRATION – application for judicial review – Student (Temporary) (Class TU) (Subclass 572) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – whether applicant denied natural justice – whether period of non-enrolment was a reason for the Tribunal’s decision. Legislation: Migration Act 1958 (Cth) Pt 5 Div 5, ss 65, 359(2), 360, 360A, 474, 476, 499.
Migration Regulations 1994 (Cth) sch 2 cl 500.212.
Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’
Cases cited: Craig v South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
LPDT v Miniter for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 13 June 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Daly of Mills Oakley Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2838 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JYOTI POKHAREL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.The Applicant has leave to amend the Application filed 21 September 2018 to seek a writ of mandamus directed to the Administrative Appeals Tribunal.
2.The Application filed on 21 September 2018 be dismissed.
3.The Applicant pay the First Respondent’s costs in the amount of $8,371.30.
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 J YOUNG:
Before the Court is an Application filed 21 September 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 30 August 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a citizen of Nepal.
The applicant arrived in Australia on 8 January 2009 as a dependent on his former wife’s Student (Temporary) (Class TU) (Subclass 572) visa. The applicant subsequently applied for and was granted further student and associated bridging visas.
On 9 December 2016 the applicant applied for the Visa.
On 18 April 2017, the Delegate refused to grant the Visa on the basis that the applicant did not satisfy cl 500.212 of schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of Schedule 2 of the Regulations requires the Delegate to be satisfied the applicant was a genuine temporary entrant.
On 5 May 2017, the applicant applied to the Tribunal for review of the Delegate’s decision and appointed a registered migration agent to act as his representative.
On 30 May 2018, the Tribunal invited the applicant to provide information about his proposed course of study and his entry and stay in Australia as a student pursuant to s 359(2) of the Act (Tribunal Invitation). The Tribunal also provided the applicant with a ‘Request for Student Visa Information’ form (Request Form) to be completed by the applicant, and a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69). The applicant provided a response to the Request Form on 8 June 2018 (Request Form Response) but did not otherwise provide any further documents in response to the Tribunal Invitation.
On 3 August 2018, the Tribunal emailed the applicant’s migration agent enclosing an invitation for the applicant to attend a hearing on 30 August 2018 at 9.30am with an information sheet attached (Hearing Invitation). The Tribunal requested the applicant provide the following documents within seven days of receipt of the invitation: a response to the Hearing Invitation; a copy of his current Confirmation of Enrolment (COE); documents evidencing his past studies in Australia; and a written statement addressing the issue of whether he was a genuine temporary entrant. The Hearing Invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant provided a Response to the Hearing Invitation on 28 August 2018. The applicant also provided evidence of his past enrolments and course completions, as well as a written statement addressing the issue of whether he was a genuine temporary entrant (Statement of Purpose).
On 30 August 2018, the applicant appeared at a hearing before the Tribunal with the assistance of his registered migration agent and an interpreter in the Nepali and English languages.
On 30 August 2018, the Tribunal affirmed the decision of the Delegate to refuse to grant the applicant the Visa (Tribunal Decision).
Tribunal Decision
On 31 August 2018, a copy of the Tribunal Decision was sent to the applicant via his representative’s email address. The Tribunal identified that the issue was whether the applicant was a genuine applicant for entry and stay as a student, as provided for in cl 500.212 of schedule 2 of the Regulations.
In considering whether the applicant satisfied cl 500.212 of schedule 2 of the Regulations, the Tribunal had regard to Direction 69. The terms of Direction 69 required the Tribunal to have regard to factors including the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the applicant’s course to his future, and his immigration history.
The Tribunal referred to the applicant’s previous visa and travel history, a statement of purpose provided to the Department of Immigration and Border Protection, evidence of his completion or graduation of courses in Australia, evidence of other enrolments into courses which were cancelled, his current enrolment in an Advanced Diploma of Hospitality Management, his completed Request Form Response, his Statement of Purpose, and his oral evidence given at hearing.
The Tribunal noted the applicant’s oral evidence that (after completing a Diploma of Hospitality Management) he continued to study from March 2018 until August 2018. It further noted that the applicant undertook to provide relevant supporting documentation by 2.00pm on the day of the hearing, however the applicant did not do so. The Tribunal found it had no evidence before it that the applicant was engaged in any study in the period from March 2018 “until the present time”.
The Tribunal found that the applicant had been a continuous resident in Australia since his arrival in 2009; that he had rarely left Australia since that time; that he had been continuously employed in Australia since at least 2012; and that his study had been confined to the VET sector. The Tribunal also found that there had been limited progress in his education and there had been a degree of repetition of the studies he had pursued.
The Tribunal also considered Direction 69 and found that the applicant’s ties to his home country did not serve as a significant incentive to return home; that his ties with Australia were limited by design but nevertheless presented a strong incentive to remain in Australia; that the applicant had sufficient qualifications to obtain employment in his home country; and considering his immigration, study and employment history, was inclined to the view that the applicant as using the student visa program to primarily maintain ongoing residence in Australia.
The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily, and found that the applicant did not meet cl 500.212 of schedule 2 to the Regulations, and affirmed the decision not to grant the Visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 21 September 2018. The Application contained the following grounds for judicial review (without amendment):
1.I was not provided procedural fairness as I felt that the member did not let me express my views and intentions during the course of the hearing.
2.I also feel that Natural justice was not given to me. There was a confusion about my academic activities from March 2018 till August 2018. Initially I had been asked to provide evidence of the study by 2pm on the day of the hearing. However, during the conclusion of the hearing the Member, based on my oral evidence, said that he believed I was enrolled during that period and I did not need to provide any evidence. He also said that that period would not have any bearing on the decision. However, the decision record clearly states that it was one of the reasons why the member reached that conclusion. I was in fact studying during that period and had sufficient evidence of the same. Thus, I feel like the decision from the AAT was unfair.
3.I also feel that the law was incorrectly applied in my case as the AAT did not give proper weight to my situation and my plans for the future. It generalized my application and decided that I was not genuine purely because I had been here for a long time but did not give proper weight to my past academic performance.
An affidavit annexing a copy of the Tribunal Decision was also filed in support of the Application. No other material was filed by the applicant in support of the Application.
The Minister filed an Amended Response on 4 December 2018. The Response included grounds that the Minister opposes the substantive application and will seek costs. The Minister relied on written submissions filed on 28 May 2024.
It is noted that the Application only seeks an order that the Tribunal Decision be quashed and does not seek a writ of mandamus directed to the Tribunal. The Minister consents to the Application being amended for the applicant to seek the requisite relief to enliven the Court’s jurisdiction under s 476(1) of the Act. I will order accordingly.
The hearing
The hearing took place on 13 June 2024.
The applicant appeared in person at the hearing and was assisted by an interpreter in the Nepali and English languages. Mr Daly, solicitor, appeared for the Minister.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
At the hearing the applicant appeared to seek that the Court grant him a visa and/or make a different decision to that made by the Tribunal. As set out above, and as I endeavoured to explain to the applicant at the hearing, the Court cannot make orders to grant a visa (see s 476 of the Act) or undertake merits review of the Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Regulations and Direction 69
Clause 500.212 of Schedule 2 of the Regulations provides as follows:
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 accordance with s 499 of the Act, Direction 69 sets out the factors that the decision maker should have regard to when assessing cl 500.212(a) of schedule 2 of the Regulations for student visa applications.
The preamble to Direction 69 provides as follows:
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a. the applicant’s circumstances; and
b. the applicant’s immigration history; and
c.if the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Direction 69 states that an application for a Student visa should be refused if, after weighing up “the applicant’s circumstances, immigration history and any other relevant matter” the decision maker is not satisfied the applicant genuinely intends a temporary stay in Australia.
In relation to the applicant’s circumstances paragraph 6 of Direction 69 provides that decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia. Paragraph 8 of Direction 69 provides that for primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
In relation to the applicant’s circumstances in their home country paragraph 9 of Direction 69 relevantly provides that decision makers should have regard to:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant's personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant's circumstances relative to the home country and to Australia;
In relation to the applicant’s potential circumstances in Australia paragraph 11 of Direction 69 relevantly provides that decision makers should have regard to:
a.The applicant's ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
In relation to the value of the course to the applicant’s potential future paragraph 12 of Direction 69 relevantly provides decision makers should have regard to:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student's past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
In relation to an applicant’s immigration history paragraph 14 of Direction 69 relevantly provides that the decision maker should have regard to:
·the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
·the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification.
CONSIDERATION
Ground One
By Ground 1 the applicant contends he was denied procedural fairness as the Tribunal member did not let the applicant “express his views and intentions during the course of the hearing”.
At the hearing the applicant submits that the Tribunal did not listen to him and told him that certain matters he raised were not relevant.
Those submissions are rejected.
The Tribunal proceedings were conducted under Part 5 of the Act. The Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Act. The applicant was invited to give evidence and present arguments at an in-person hearing in compliance with ss 360 and 360A of the Act.
The transcript of the Tribunal hearing is not before the Court. The best evidence before the Court is therefore the Tribunal Decision. The Tribunal Decision demonstrates that the Tribunal put questions to the applicant during the hearing and that the applicant was afforded an opportunity to give evidence orally. Paragraphs [16]–[28] of the Tribunal Decision set out the applicant’s evidence. At paragraph [16] the Tribunal sets out the applicant’s visa history. At paragraph [17] the Tribunal notes that since 2008 the applicant had only left Australia for two brief visits to Nepal in 2016 and 2017. At paragraph [18] the Tribunal sets out the applicant’s evidence contained in his Statement of Purpose, noting that his evidence was that he was enrolled in study between 18 April 2016 and 3 August 2018. It also notes that the Tribunal “inquired when the applicant separated from his wife” and sets out the applicant’s evidence as to the purpose of his studies in Australia. At paragraph [18] the Tribunal sets out the applicant’s evidence as to completion of courses of study undertaken. At paragraphs [19]–[25] the Tribunal sets out the applicant’s study history noting that in addition to the six courses the applicant says he has completed, he has enrolled in a further nine courses, which were cancelled due to non-commencement of studies, cessation of studies, change to student enrolment or the applicant leaving the education provider. At paragraph [25] the Tribunal sets out the applicant’s evidence provided pursuant to a request for information under s 359(2) of the Act, including that the applicant has worked packaging food since 2012, earning $20,800 annually and that the applicant last saw his wife, brother and mother in Nepal in 2017. At paragraphs [26] and [27] of the Tribunal Decision, it refers to the applicant giving evidence about his study from March 2018 until the present time, and evidence about his new wife in Nepal, his interests in the hospitality field, his studies and his intentions to return to Nepal.
At paragraph [28] the Tribunal said:
The Tribunal finds the applicant has been continuously resident in Australia since his initial arrival in January 2009, that he has rarely left Australia, that he has been continuously employed in Australia since at least 2012, that his study has been confined to the VET sector, that there has been limited progress over an almost ten year period (noting the applicant was lawfully resident in Australia as a dependent for three years as outlined in paragraph 16 above), that there has been a degree of repetition in studies pursued by the applicant (Commerce in Nepal, Small Business Management in Australia, Hospitality Management in Australia), that he has now acquired trade level qualifications as a cook/chef, vocational level qualifications in management and sector specific management qualifications in hospitality management.
In light of the above, it is clear that the applicant was given an opportunity to make submissions in relation to the issues under review in accordance with s 360 of the Act and was given a meaningful hearing. It is also clear that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Act.
As to the assertion that the Tribunal did not listen to the applicant and said certain matters were not relevant, at paragraph [9] of its decision the Tribunal sets out the provisions of cl 500.212 of schedule 2 of the Regulations. At paragraphs [30]–[36] the Tribunal considers the applicant’s circumstances in his home country pursuant to paragraphs 9 and 10 of Direction 69. At paragraphs [37]–[40] the Tribunal considers the applicant’s potential circumstances in Australia pursuant to paragraph 11 of Direction 69. At paragraphs [41]–[43] the Tribunal considers the value of the course to the applicant’s future pursuant to paragraph 12 of Direction 69. At paragraph [44]–[46] the Tribunal considers the applicant’s immigration history pursuant to paragraphs 13 and 14 of Direction 69.
Accordingly, there is nothing in the Tribunal Decision to indicate that the Tribunal didn’t take into account relevant considerations or evidence of the applicant relevant to the matters to be considered pursuant to cl 500.212 and Direction 69.
Accordingly, Ground 1 discloses no jurisdictional error on the Tribunal’s behalf.
Ground Two
By Ground 2 the applicant contends that he was denied natural justice. The applicant claims that during the course of the hearing, the Tribunal member asked for the applicant to provide evidence of his studies from March 2018 until August 2018, but that at the end of the hearing the Tribunal member stated he no longer needed to provide any evidence as the Tribunal member believed he was enrolled during that period, based on the applicant’s oral evidence.
As noted above the transcript of the Tribunal hearing is not before the Court. The Tribunal Decision notes at paragraph [26] that the applicant undertook to provide relevant supporting documentation by 2.00pm on the day of hearing but that the applicant did not provide the evidence. The hearing record has a handwritten note saying that the applicant is to provide “proof of engagement in study/any credit received from March 2018 until present time” by 2.00pm on the day of the hearing. There is no evidence that the Tribunal member stated the applicant did not need to provide any further documentation nor that the Tribunal member stated he believed that the applicant was enrolled.
I accept the Minister’s submissions that the applicant was provided numerous opportunities to provide the Tribunal with evidence of engagement with study and any study credit received from March 2018. The applicant did not provide evidence of any studies between March 2018 and August 2018 in response to the Tribunal Invitation. Although the applicant did provide evidence of his past enrolments and studies in response to the Hearing Invitation, the applicant did not provide evidence of studies between March 2018 and August 2018.
The applicant further claims that the Tribunal member said that the applicant’s period of non-enrolment between March 2018 and August 2018 would not influence his decision. He claims that the Tribunal Decision clearly shows his period of non-enrolment was one of the reasons why the Tribunal member reached his decision. He further claims that he was studying during that period and had sufficient evidence of same.
The Tribunal Decision notes the following:
·the applicant finished a Diploma of Hospitality Management on 2 March 2018;
·the applicant enrolled in an Advanced Diploma of Hospitality to commence on 19 March 2018 which was cancelled due to “non-commencement of studies”;
·the applicant enrolled in an Advanced Diploma of Hospitality Management that was scheduled to commence on 3 August 2018 but cancelled on 3 July 2018 due to the education provider “default/cancellation”;
·the applicant enrolled in an Advanced Diploma of Hospitality Management scheduled to commence on 27 August 2018 and conclude on 9 December 2018; and
·there is no evidence before the Tribunal the applicant was engaged in any study in the period from March 2018 until the present time.
I reject the submission that the period of non-enrolment was a reason for the Tribunal’s decision. The Tribunal did not make adverse findings about the period of non-enrolment. Rather, the Tribunal found that the applicant had made limited progress during his almost ten years in Australia, that there had been a degree of repetition in the studies pursued by the applicant, that all had been in the VET sector and the applicant already had a set of qualifications that would enable him to find employment in Nepal. The Tribunal’s findings as to the applicant’s studies are set out in paragraph [41] above.
As to the asserted discrepancy between the period of non-enrolment, the applicant says that the relevant period was March 2018 to August 2018. The Tribunal Decision refers to study from March 2018 until the present time. Firstly, the Tribunal hearing was on 30 August 2018. In those circumstances, I do not consider there is necessarily any discrepancy in the period referred to. In my view, the phrase the “present time”, being 30 August 2018, is capable of being captured by the period March 2018 until August 2018. Secondly, even if there were an error in relation to the non-enrolment period, it was not material to the Tribunal’s decision. The Tribunal made no adverse finding about the non-enrolment period. Rather, as already set out above, having considered the applicant’s study history, the Tribunal found that the applicant had made limited progress during his almost ten years in Australia, that there had been a degree of repetition in the studies pursued by the applicant, that all had been in the VET sector and the applicant already had a set of qualifications that would enable him to find employment in Nepal. Accordingly, the decision could not realistically have been different even if the period of non-enrolment had been different or, indeed, even if the Tribunal had found that the applicant had been enrolled in the period March 2018 until August 2018: LPDT v Miniter for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12 at [7], [10], [14].
Accordingly, Grounds 2 discloses no jurisdictional error on the Tribunal’s behalf.
Ground Three
To the extent that Ground 3 expresses dissatisfaction with the Tribunal Decision, the applicant seeks impermissible merits review. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, the weight to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
Accordingly, Ground 3 also discloses no jurisdictional error on the Tribunal’s behalf.
CONCLUSION
As set out above, none of the Grounds advanced by the applicant gives rise to jurisdictional error.
It follows that the Application must be dismissed.
The Minister seeks that the Applicant pay their costs in the amount of $8,371.30. I note that this is the scale amount and shall order accordingly.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 1 August 2024
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