Ranabhat v Minister for Immigration

[2020] FCCA 2972

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANABHAT & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2972

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Student (Temporary) (Class TU) (subclass 500) visa – whether finding that applicant did not satisfy reg.500.212(a) was affected by jurisdictional error

Legislation:

Migration Act 1958 (Cth), ss.359AA, 499
Migration Regulations 1994 (Cth), regs.500.212(a), 500.212(b), 500.215 Sch 2.

First Applicant: APURBA RANABHAT

Second Applicant: RUPA MAHAT

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 99 of 2020

Judgment of: Judge Jarrett

Hearing date: 15 October 2020

Date of Last Submission: 15 October 2020

Delivered at: Brisbane

Delivered on: 3 November 2020

REPRESENTATION

The Applicants appeared in person

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 19 February, 2020  be dismissed;

2. The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,464.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 99 of 2020

APURBA RANABHAT

First Applicant

RUPA MAHAT

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of the second respondent made on 29 January, 2020 by which it affirmed a decision not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa.

2. The first respondent opposes the application and the second respondent has entered a submitting appearance.

3. The Court directed the each of the parties to file and to serve written submissions and a list of authorities.  However, the applicants have filed no written submissions as directed.   Nor have they taken the opportunity to amend their application to further or better state their grounds of review.  I have the benefit of written submissions from the first respondent.

4. In general terms, the issue in these proceedings is whether the second respondent fell into jurisdictional error when it determined that the applicant did not meet one of the conditions necessary for the grant of the visa, namely cl.500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

5. The applicants appeared in person by telephone link with the assistance of a Nepalese interpreter.  The first applicant made submissions on behalf of the applicants in the proceedings.

Background

1. The first applicant is a Nepalese citizen who arrived in Australia in 2013 on a TU 573 (Student) visa issued for the higher education sector. The second applicant is the first applicant’s spouse.

2. On 4 April, 2019 the applicants applied for the Student (Temporary) (Class TU) (subclass 500) visas the subject of this review. On 9 August, 2019 the first respondent’s delegate refused to grant the applicants the visas on the basis that the first applicant (who was the primary visa applicant) did not satisfy the requirements of cl.500.215 of Schedule 2 to the Regulations because the applicants had not provided evidence of Overseas Student Health Cover (OSHC) for the full duration of their study period.

3. On 4 September, 2019 the applicants applied for review of the delegate’s decision and appeared before the second respondent on 22 January, 2020 to give evidence and present arguments in support of their application.  They were assisted by a migration agent.

4. On 29 January, 2020 the second respondent affirmed the decision under review.  The second respondent set out its reasons for doing so in a written decision record.  The second respondent summarised the applicants’ relevant backgrounds as follows:

   6.  The primary applicant is Apurba Ranabhat, a citizen of Nepal. The secondary applicant is his spouse, Rupa Mahat. Mr Ranabhat first came to Australia in October 2013 on a TU 573 (Student) visa issued for the higher education sector. He did not study in higher education, but sought a vocational Certificate IV in Commercial Cookery qualification, eventually issued, he claims, on the basis of recognition of his prior learning. Between 2015 and 2019 he enrolled in a number of courses from degree to certificate level, but did not complete any. In April 2017 he successfully sought a temporary work visa. At the time of its expiry in 2019, he applied for the student visa under review. He again enrolled in a Certificate IV in Commercial Cookery, a qualification he already held. That enrolment was cancelled on the basis of unsatisfactory progress in November 2019; the visa having been refused in August of that year. Since arriving in Australia he has attained only that one qualification, the initial Certificate IV in Commercial Cookery, which he acknowledges he did not study for. In consideration of this study record, the Tribunal has weighed his status as a genuine temporary entrant and genuine student.

5. The second respondent set out the terms of cl.500.212 of the Regulations. That clause, in effect, required that before granting the visa, the second respondent needed to be satisfied that the applicant was a genuine applicant for entry and stay as a student in Australia. The second respondent recorded that in addressing that question it must have regard to Direction No.69 Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications made under s.499 of the Migration Act 1958 (Cth). The second respondent noted four matters to which it needed to pay attention having regard to the Direction. It noted that the Direction was not to be used as a checklist but was intended to be a guide to decision-makers when considering an applicant’s circumstances as a whole when reaching a finding about whether an applicant satisfied the relevant genuine temporary entrant criterion.

6. The second respondent set out the material to which it had regard in reaching its decision, including:

   a)the first respondent’s delegate’s decision;

   b)a copy of the Certificate IV in Commercial Cookery issued to the first applicant by Meee College on 22 January, 2016;

   c)a record of results for the above certificate, showing all units were credited and stating “these units/modules have been delivered and assessed in English”;

   d)a statement from Gaindakot Polyclinic in Nepal dated 6 January, 2019 supporting the first applicant’s claim that his parents were injured in a bike accident in May, 2019 and treated by the clinic over a period of a month;

   e)OSHC verification from Bupa Australia dated 6 December, 2019 showing that coverage was active until midnight 5 January, 2022;

   f)a letter to the second respondent setting out claims regarding OSHC status; financial distress; the first applicant’s parents’ situation post the accident; the first applicant’s family’s support; the first applicant’s intention to return to Nepal after 13 January, 2022; his personal stress; his career plans in the Nepal hospitality industry and his commitment to study; and

   g)information regarding his mother’s financial situation in support of his claim that his parents can now afford to support him.

7. The second respondent put to the applicant a copy of his study record in the Provider Registration and International Student Management System.  It provided the applicant with a copy of the record and gave him time to consider it. The second respondent recorded in its reasons that it told the applicant that if he needed extra time the second respondent would consider such a request.  The second respondent outlined that information in PRISMS was relevant to the review because it might point to issues related to his enrolment and academic progression, including being enrolled in courses that are not consistent with his current attainment level, or show that he has had major gaps in his studies and other progression issues. It might cause the second respondent to find the applicant did not appear to be progressing academically and if the second respondent were to identify this or other academic or enrolment issues, while the second respondent had not made up its mind, it was information that would be the reason, or part of the reason, for affirming the decision under review. The first applicant stated that he believed that he understood the relevance of the information. The second respondent recorded that the first applicant did not request additional time to consider it and provided comments immediately after reading it. The first applicant told the second respondent that the record appeared correct.

8. The second respondent held concerns about whether the first applicant was a genuine applicant for entry and stay as a student.  That was not a dispositive issue before the delegate.  The second respondent dealt with that issue in its decision record in the following way:

   27. The Tribunal said its remaining concern was the record indicated that the applicant had been here a long time, and while some time was while on a working visa, he was repeating a course he had already graduated from, and that and the proposed diploma course were short, inexpensive courses. This may be an indicator that he was not a genuine student and genuine temporary entrant, but was using the student visa program to extend his stay in Australia. The applicant said he realises he did not study while on his initial student visa, and he accepts this was a big mistake; he was aware that he should be studying, and no, he did not discuss it with the department or seek advice from anyone but his agent at the time.

9. The second respondent concluded that the first applicant was using the student visa program to extend his stay in Australia and did not intend genuinely to remain in Australia temporarily.  In reaching that conclusion, the second respondent took into account the lack of academic progress by the applicant since his arrival in Australia.  It recorded that in breach of condition 8202 of his initial student visa which required him to remain enrolled in and make certain academic progression, the applicant did not study at all.  The applicant offered no explanation for that other than to say that it was a “big mistake”.  The second respondent recorded the first applicant’s claims that he could not adjust to the sophistication of the Australian study experience but noted that he took no advice about that matter other than that of his migration agent.  The second respondent recorded that, in the end, the first applicant did not study at even the lower end of the Australian qualification framework for any sustained period.  It noted that he has not studied effectively at any time and enrolled in his currently enrolled course only days prior to the review hearing before the second respondent.  The second respondent was unconvinced that the first applicant was genuinely trying to succeed at study.

10. The second respondent concluded that the first applicant was using the visa program to extend his stay in Australia.  The second respondent reached that conclusion because, primarily, the applicant had spent most of his time in Australia working and by reason of his work experience, had been awarded a Certificate IV in Commercial Cookery in 2016.  The second respondent did not accept the first applicant’s claims that he was unable to receive credit for that certificate and was thus required to re-enrol in that course, or a lesser course leading to the same qualification because of its non-recognition.  The second respondent, however, noted that the certificate provided to it by the first applicant contained an endorsement that the qualification was recognised within the Australian Qualifications Framework and was a genuine qualification regardless of the basis upon which it was issued.  The second respondent did not accept that re-enrolment in that course or repeated study was required or warranted.  It considered the alternative put to the first applicant was more likely, namely that he was choosing short, inexpensive courses to extend his stay for the least investment of time and funds.

11. The second respondent considered that the first applicant was likely to earn more in Australia than he did in Nepal.  It accepted that there was some clear benefit to him continuing to work in Australia where he earned up to three times the amount he was likely to in Nepal.  Nonetheless, the second respondent accepted that the applicant’s proposed wages in Nepal would be offset by lower living costs.  The second respondent accepted that the first applicant had done some research into his employment potential in Nepal.  Ultimately these were matters that the second respondent thought weighed in the applicant’s favour.

12. The second respondent found that, on balance, the first applicant was not a genuine applicant for entry and stay as a student as required by cl.500.212 of Schedule 2 to the Regulations because it was not satisfied that the first applicant intended genuinely to stay in Australia temporarily.

Grounds of review

1. The applicants grounds of review are set out in his application filed on 19 February, 2020 in the following way:

   1. The Member applied or interpreted Direction 69 not according to Law. The Direction 69 was given but mentioned about the student visa and work visa. After the expiry of work visa, the student visa as lodged to complete the course which was not completed. The relevance of student visa and work visa in not meeting the GTEW does not make sense. It is not that I have lived in Australia for a long. The consideration of obtaining the formal qualification before leaving Australia was not given weight when it should have been.

   2. The Member considered the not important facts and did not consider important facts. The accident, distress was not even considered for compelling ground. Not passing the exam or unit was considered important and given a chance for me to speak. Whereas the visa was granted for work visa if I had not complied with student visa. The fact that work visa as granted means the compliance. The student visa was not cancelled.

2. The first respondent submits that the applicants’ grounds of review ought be seen as a claim by him that:

   a)in respect of the first ground, the second respondent failed to take into account relevant considerations; and

   b)in respect of the second ground, the second respondent took into account irrelevant considerations.

3. I accept that is a fair assessment of the grounds of review nominated by the applicants.  Although the applicants did not file written submissions in support of their application, the first applicant did make oral submissions in support of his application.  However, his submissions went largely to the merits of the second respondent’s decision and did not address the question of whether the decision was affected by jurisdictional error.

4. As to the first ground of review, I accept the first respondent’s submission that by this ground, the applicants appear to argue that the second respondent should not have placed any relevance on the first applicant’s student and work visa history in making its decision about whether he met the genuine temporary entrant criteria.  It might also be seen as an argument that the second respondent placed insufficient weight upon the first applicant’s need to obtain a formal qualification before leaving Australia to start a business in Nepal.

5. But these arguments have no merit.  The second respondent identified that the matters set out in Direction 69 might guide its consideration of the first applicant’s visa application.  The first applicant has a study history, academic progress and work history were all matters relevant to a consideration of whether the first applicant might be seen as a genuine applicant for temporary stay: cls.11e. and 14a. of Direction 69.

6. I accept the first respondent’s submission that the second respondent did consider the first applicant’s contention that he needed to obtain a formal qualification before leaving Australia to start a business in Nepal.  It referred to it at paragraphs [21], [23] – [25] and [28] of the decision record, but decided to give greater weight to its finding that the first applicant was not, and is not, genuinely trying to succeed at study. This finding was clearly open to the second respondent based upon the first applicant’s academic record since his entry into Australia.  The weighing of the relevant matters identified by the second respondent is a matter entirely for the second respondent.

7. I accept the first respondent’s submission that there was no discernible failure by the second respondent to consider a relevant consideration or take into account an irrelevant consideration.  There is nothing in the applicants’ argument that Direction 69 was not applied correctly by the second respondent. 

8. As to the second ground of review, the first respondent submits that it might be viewed as three separate assertions by the applicants, namely:

   (a)    first, that the Tribunal should have found in the Applicant’s favour given the distress suffered by him and his family following his family’s accident in Nepal;

   (b)    secondly, that the Tribunal unduly gave weight to his failure to complete courses; and

   (c)     thirdly, that the Tribunal failed to consider that the Applicant had been complying with his student visa, which was evidenced by the fact that he was granted the work visa.

9. I accept that this characterisation is appropriate.

10. As to the first aspect of ground two, the applicants’ reference to an accident and distress was a reference to distress suffered by him and his family following an accident involving his family in Nepal.  The relevance of those matters was that the first respondent relied upon them to explain his failure to have overseas student health cover in place, the failure of which led to the first respondent’s delegate refusing the visa application is initially for those matters, however, they were not relevant to the second respondent’s decision to affirm the delegate’s decision not to grant the visas.  Thus, there was no error by the second respondent in according those matters any weight.

11. As to the second matter raised in ground two, I accept the first respondent’s submissions that the second respondent’s consideration of the first applicant’s failure to complete courses fell squarely within the ambit of the matters articulated in cls.500.212(a) and (b) including:

    a)whether the first applicant intended genuinely to stay in Australia temporarily having regard to the first applicant’s circumstances, the first applicant’s immigration history and any other relevant matter; and

    b)whether the first applicant intended to comply with any conditions subject to which the visa was granted, having regard to the first applicant’s record of compliance with any condition of a visa previously held by him and the first applicant’s stated intention to comply with any conditions to which the visa may be subject.

12. As to the third aspect of the second ground of review, at the hearing before the second respondent, the first applicant conceded that he was aware that he did not meet the requirements of his first student visa because he did not study.  His compliance with that visa was plainly a matter of relevance in the present visa application. 

13. Ground two does not reveal any jurisdictional error.

14. In his oral submissions to this Court, the first applicant focused upon the merits of the second respondent’s decision.  It is clear that he disagreed with the second respondent’s decision vehemently.  However, as the first respondent submits, disagreement about whether the second respondent reached the right decision does not demonstrate jurisdictional error. 

1. Having regard to the terms of the second respondent’s written decision, I accept the first respondent’s submissions that the second respondent correctly stated the relevant legal requirements and its reasons disclose no misunderstanding or misapplication of those requirements to the second respondent’s findings of fact.  The second respondent’s reasons show that it discharged its obligation to review the decision of the first respondent’s delegate according to law.

Conclusion

1. The applicants’ grounds of review do not demonstrate jurisdictional error in the second respondent’s decision.  I have not otherwise discerned jurisdictional error in the second respondent’s decision.

2. Consequently, the application for review must be dismissed with costs fixed in the sum claimed by the first respondent.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 November, 2020.

Associate:

Date: 3 November, 2020