Prasai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 390
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Prasai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 390
File number(s): SYG 2211 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 23 May 2022 Catchwords: MIGRATION – Aministrative Appeals Tribunal – Student visa – whether the Tribunal made jurisdictional error in that it failed to comply with the requirements of s359AA and s359A of the Migration Act 1958 (Cth) – whether the Tribunal may jurisdictional error by treating the jurisdictional question under r 500.212 of the Migration Regulations 1994 (Cth) as to whether the applicant was a genuine applicant for entry and stay as a student, whereas the regulation required the second respondent to satisfy itself of the components in a, b and c of cl 500.212 of the Regulations– whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 359A, 359AA
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175
Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929
NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 65
SZNKO v Minister for Immigration and Citizenship and Anor (2010) 184 FCR 505
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 19 May 2022 Date of hearing: 19 May 2022 Place: Sydney Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Mr Taylor appeared on behalf of the First Respondent. ORDERS
SYG 2211 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BIKRAM PRASAI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondents costs, fixed in the amount of $5400.00.
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 HUMPHREYS
INTRODUCTION
The applicant is a male citizen of Nepal. The applicant first arrived in Australia in October 2008 as the holder of a Sub-class 572 Student visa. The applicant subsequently held three further Student visas and a Graduate Work Stream visa to work as an Internal Auditor. During the applicant’s study, he completed a Bachelor of Accounting followed by a Masters of Accounting.
On 20 January 2017, the applicant applied for a Student (Subclass 500) visa (“Student visa”) to study a Diploma of Leadership and Management. On 3 March 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”), refused to grant the applicant his visa as the delegate was not satisfied that the temporary entrant criteria were met.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 9 July 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant a further Student visa.
The applicant now seeks judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is relatively short but comprehensive. After setting out the background, the Tribunal noted that included within an invitation to attend a hearing sent to the applicant on 26 March 2018, was a request for the applicant to provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It also noted that the Tribunal would assess whether the applicant intended to genuinely stay in Australia as a temporary resident as required by cl 500.212(a) of the Migration Regulations 1994 (Cth), and asked him to provide a written statement addressing the issue by referring to Direction 69, which was attached to the invitation.
Paragraph 10 of the Tribunal decision, sets out in full, the written submission provided by the applicant in response to the request for information. Paragraph 16 of the Tribunal decision, records the details of information provided by the Tribunal to the applicant pursuant to
s 359AA of the Migration Act 1958 (Cth) (“the Act”). The Tribunal, in particular, noted that, it explained to the applicant that he could request time to consider his response. The basis upon which the information was sought, is set out in paragraphs 18 and 19 of the Tribunal decision.
At paragraph 20 of the Tribunal decision, it records that the applicant told the Tribunal that he did not require further time, and records his responses to each of the issues the Tribunal requested clarification on.
Paragraphs 21 and onwards of the Tribunal decision, set out the relevant findings of the Tribunal and in particular, relevant factors in Direction Number 69.
At paragraph 26 of its decision, the Tribunal noted that it had concerns about the gaps in the applicant’s study history and his failure to maintain studies in the Diploma of Leadership and Management course which was the initial rationale for his application for a visa in January 2017. The Tribunal noted with concern that the applicant appeared to have enrolled in a further Diploma of Leadership and Management course only after receiving the hearing invitation from the Tribunal.
At paragraph 27 of its decision, the Tribunal was concerned that the applicant had not explained why the Diploma of Leadership and Management course was necessary for future employment in Nepal or involvement in his family’s business. At paragraph 28 of its decision, the Tribunal noted that the applicant had maintained steady employment with the same employer since 2009, and that he was negotiating with his employer in relation to their sponsoring him for a work visa to allow him to remain in Australia. The Tribunal considered that the stability of the applicant’s employment, when compared to the likely economic circumstances in his home country, provided him with an incentive to remain in Australia.
The Tribunal considered the applicant’s family ties in Nepal, but was not of the view that they were indicative of a strong reason to return to his home country. Accordingly, the Tribunal concluded that the applicant did not meet the criteria for being a genuine applicant for entry and stay and did not meet the criteria in cl 500.212 of the Regulations.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon, are contained in the Initiating Application filed with the Court on 9 August 2018. They are as follows;
Ground One
The second respondent made jurisdictional error in that it failed to comply with the requirements of s359AA and s359A of the Migration Act 1958.
Particulars.
a. The multiplicity of the particulars of the information precluded clear particulars being given as required by s 359AA(1)(a).
b. The purpose of the information as disclosed in[18] and [19] was so complex that he did not comply with s 359AA(1)(b)(ii).
Ground Two
The second respondent may jurisdictional error by treating the jurisdictional question under Regulation 500.212 as to whether the applicant was a genuine applicant for entry and stay as a student, whereas the regulation required the second respondent to satisfy itself of the components in a, b and c of regulation 500.212.
Ground Three
Further particulars will be provided upon receiving the hearing transcripts.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant’s former Solicitor withdrew from the proceedings on 14 April 2022. The Court was satisfied that the applicant’s English-language skills were sufficient for him to understand and follow the proceedings without the assistance of an Interpreter.
Prior to the hearing commencing, the Court ensured that the applicant had been provided with a copy of the relevant Court Books and that a copy of the respondent’s written submissions had served upon him. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material, including hearing transcripts, was filed on behalf of the applicant in support of his case.
At the commencement of the hearing, the applicant asked the Court that his matter be adjourned on the basis that he was not legally represented. The applicant had contacted the first respondent’s solicitors at 3.15pm on 18 May 2022, being the day before the hearing, advising that he was unable to seek legal representation in the short period of time he had whilst living in Adelaide. The solicitors for the first respondent advised the applicant that any adjournment application would be opposed.
The Court noted that the matter has been before the Court since 2018. No adequate explanation was provided to the Court as to the basis upon which the applicant was unable to properly fund his legal representatives prior to the matter being called on for hearing. The applicant’s explanation that he had been unable to obtain cheap legal representation in Adelaide, was not in the Courts view, and adequate explanation.
There is a significant public interest in the timely and effective disposal of litigation, particularly in public law where delays in dealing with applications for visas are to be avoided if possible: (see; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] per Gyles J).
Further, the adversarial system does not permit disregard of undue delay. Avoidance of undue delay in the efficient use of public resources are considerations that may transcend the interests of the parties. The resolution of litigation serves the public as a whole, not merely the parties to the proceedings: (see; Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175 at [189]-[190], [211]-[215], [217] and [227].
Weighing up the competing interests, the Court was of the view that it was not appropriate to adjourn the matter and refused the adjournment application. In so doing, the Court was of the view that no assurance can be given by the applicant that he would be in a position to be legally represented even if an adjournment was given.
The applicant was asked what he wanted say in support of his application. The applicant stated that he had nothing to say at that time.
Following the first respondent’s oral submissions, the applicant was asked if he wished to say anything further in reply. The applicant stated “no”.
THE FIRST RESPONDENT’S SUBMISSIONS
The legal representative for the first respondent summarised their submissions orally to assist the applicant in understanding why it was, in the first respondent’s view, that there was no jurisdictional error in the Tribunal’s decision.
In relation to ground one, the Tribunal decision record indicates that it put a number of matters orally to the applicant for comment, pursuant to s 359A of the Act. The applicant should be given a reasonable opportunity to comment on or respond to those matters of concern: (see; SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 65 at [79]). How much of that surrounding context must be disclosed necessarily, depends on the facts and circumstances of each individual case: (see; SZNKO v Minister for Immigration and Citizenship and Anor (2010) 184 FCR 505 at [23]). It was submitted the touchstone of the obligation has been described as requiring the disclosure of so much as to ensure that the opportunity to “comment… or respond…” is meaningful: (see; NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]).
It was submitted that in the circumstances of the current case, the applicant’s contention that the relevant particulars were so complex, fails on its facts.
None of the information comprised anything that was new or complex for the applicant, such that he would fail to appreciate the nature of the information and why was relevant to the review and the consequences of being relied upon. The information was entirely within the applicant’s own knowledge and was material of which he would be aware. Prior to the hearing, the applicant had been put on notice as to his capacity to meet the genuine temporary entrant criterion. It was submitted that the Tribunal’s decision record reveals that it went to some lengths to explain the issues being the gaps in his study history and is limited time spent away from Australia which might indicate that he genuinely did not intend to remain in Australia temporarily.
It was further submitted that much of the matters put to the applicant were not information which in its terms constituted the rejection, denial of undermining of the applicant’s claims to be genuine student. Further, some of the material constituted information as contained in delegate’s decision record which was given to the Tribunal by the applicant. An exception in
s 359A(4)(b) of the Act, operated to exclude this information from the ambit of s 359A of the Act.
Further, the Tribunal explained why the information was relevant and that if it relied on that information, it may find that the applicant was not a genuine student and was using the Student visa scheme to maintain residence in Australia. The Tribunal informed the applicant that if it found that he did not intend to generally remain in Australia temporarily, it would affirm the delegate’s decision to refuse the application for a Student visa. The applicant was given an opportunity to consider the information and responded in a prescribed manner. The applicant elected to respond immediately and provided a detailed response. It was submitted that the Tribunal complied per the requirements in s 359AA of the Act and accordingly, s 359A(3) of the Act was applied, and no breach of s 359A of the Act is established.
Ground two contends that the Tribunal erred, because it interpreted cl 500.212 of the Regulations, as simply requiring consideration of whether the applicant was a genuine applicant for entry and stay as a student, without having regard to the separate components in paragraphs (a), (b) and (c) of cl 500.212 of the Regulations.
It was submitted that it was correct that cl 500.212 of the Regulations, requires the applicant to satisfy each component in paragraphs (a), (b) and (c). In this case however, the Tribunal was satisfied that the applicant did not meet the requirement in cl 500.212 (a) of the Regulations. In those circumstances, it was not necessary for the Tribunal to assess paragraphs (b) and (c).
Ground three contends that the further particulars will be provided upon receiving the transcript. It is not a proper ground of review.
CONSIDERATION
The applicant has been in Australia, as at the time of this judgment, for fourteen years, on various Student visa’s.
Ground one is a general complaint of a failure to comply with the requirements of
ss 359A and s 359AA of the Act. This ground cannot be sustained.
Section 359AA and s 359A of the Act, work in tandem in providing a mechanism by which information may be put to the applicant either orally or in writing, to enable them to comment on material which the Tribunal considers would be the reason or part of the reason, for affirming the delegate’s decision under review.
The Court rejects the assertion that the multiplicity of the particulars of the information requested, precluded clear particulars being given, as required by s 359AA(1)(a) of the Act. In the Courts view, none of the material set out in paragraph 17 of the Tribunal decision record was inherently complex or difficult to understand, and it was information that was within the knowledge of the applicant. The relevant procedures were followed, in that the applicant was asked to comment or respond orally to the information, but also advised that he could seek additional time to comment on or respond to that information. The applicant elected to respond immediately and the answers recorded at paragraph 20 of the Tribunal decision, appear to respond directly to the questions that were raised with him. No breach of
s 359AA(1)(b) of the Act arises.
The assertion that the Tribunal, as recorded in paragraph 18 and 19 of the Tribunal decision record, failed to comply with s 359AA(1)(b)(ii) of the Act, can also not be sustained. The Tribunal very clearly set out the concerns that it had regarding the gaps in the applicant’s study and his limited time away from Australia since 2008. There is nothing in the applicant’s responses which would indicate that he did not understand the nature and relevance of the questions that were put to him. Further, this applicant was in many ways well educated and sophisticated. The applicant possessed both a Bachelor’s and Master’s degrees in Accounting. The applicant was clearly given the opportunity to seek more time to consider his answers but chose not to and responded in the manner that he did. In the absence of any transcript, which would indicate that the decision record is not an accurate reflection of the hearing, the Court is unable to find that the purpose of the information or that the multiplicity of it was so complex that it did not comply with the statutory requirements. Ground one must be dismissed.
Ground two has no merit. Clause 500.212 of Schedule 2 to 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.
Each of cl 500.212 (a), (b and (c) of the Regulations are cumulative requirements. In order for the visa sought to be granted, each of them must be met. The Court agrees with the first respondent’s submissions that in this case, the Tribunal determined that cl 500.212(a) of the Regulations was not met, in that the Tribunal was not satisfied the applicant intended to genuinely stay in Australia temporarily. Having determined this, it was not necessary for the Tribunal to consider the subsequent clauses due to the cumulative nature of them.
Ground three is not a proper ground of judicial review. No proper complaint or jurisdictional error has been raised in it and it has no merit.
CONCLUSION
Accordingly, in these circumstances, the application is dismissed.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.
Associate:
Dated: 23 May 2022
0
6
0