Rasaili v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 732

Federal Circuit and Family Court of Australia

(DIVISION 2)

Rasaili v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 732

File number:

MLG 2230 of 2018

Judgment of:

JUDGE LADHAMS

Date of judgment:

2 September 2022

Catchwords:

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Temporary) (Class TU) visa – whether Tribunal took into account an irrelevant consideration – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 476, 477, 499

Migration Regulations 1994 (Cth) cl 500.212

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40

Division:

Division 2 General Federal Law

Number of paragraphs:

26

Date of hearing:

26 August 2022

Place:

Perth

Counsel for the Applicant:

Mr S Sharify

Solicitor for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr C Orchard

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

MLG 2230 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

KRITIM RASAILI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LADHAMS
DATE OF ORDER:	2 September 2022

THE COURT ORDERS THAT:

1.The application is 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 LADHAMS:

Introduction

1. Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 9 July 2018. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa (student visa).

2. The applicant raises a single ground of application alleging that the Tribunal took into account irrelevant information in its assessment of whether he met the genuine temporary entrant criterion in cl 500.212(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The information which was said to be irrelevant was the applicant’s inability to complete a higher education degree. For the reasons explained below, this ground is not established and the application for judicial review is dismissed.

   Background

3. The applicant is a non-citizen who arrived in Australia in March 2012 as a holder of a student visa. The applicant applied for the student visa the subject of this application on 1 December 2016.

4. On 20 March 2017 a delegate of the Minister refused to grant the applicant the student visa. The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

5. On 24 March 2017 the applicant lodged an application to the Tribunal for review of the delegate’s decision.

6. On 20 June 2018 the applicant attended a hearing convened by the Tribunal to give evidence and present arguments. The Tribunal affirmed the delegate’s decision on 9 July 2018.

   Tribunal Decision

7. The Tribunal identified that the issue for its consideration was whether the applicant intended to stay in Australia temporarily as required by cl 500.212 in Schedule 2 to the Regulations. The Tribunal recognised that in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Direction No 69 made by the Minister under s 499 of the Migration Act.

8. The Tribunal acknowledged the applicant’s evidence that he was, at the time of the hearing, enrolled in a Certificate IV in Cookery, which he had commenced, and a Diploma of Hospitality and an Advanced Diploma of Hospitality which he was yet to commence.

9. The Tribunal noted that the applicant originally came to Australia to study a Diploma of Computing and a Bachelor of Information Technology but found the study too difficult. The Tribunal set out the various courses the applicant had been enrolled in since his arrival, noting which had been completed and which had been cancelled, and noted that the applicant had only studied successfully at the Vocational Education and Training (VET) level.

10. The Tribunal considered the applicant’s evidence that he was able to maintain his personal relationships with his family back home whilst he was living in Australia. The Tribunal noted that the applicant had only returned to his home country on two occasions since his arrival. The Tribunal was concerned that the applicant’s circumstances in Australia were not a significant incentive for him to return to his home country.

11. The Tribunal considered that the applicant’s responses to questions about why he had such a large number of disparate and completely unrelated enrolments did not amount to a real explanation. The Tribunal considered that the applicant had been unable to conform to any stated study plan or career orientation. The Tribunal acknowledged that students can make reasonable changes to study pathways. However, the Tribunal considered that in the applicant’s case, he had made multiple changes over a significant period of time in areas that do not link together in any coherent manner. The Tribunal found that the applicant’s current course of study was not relevant to his proposed future employment in his home country.

12. The Tribunal found that the applicant was using the student visa system to maintain residency in Australia, and that he did not genuinely intend to stay in Australia temporarily. He therefore did not meet cl 500.212(a) in Schedule 2 to the Regulations and the Tribunal affirmed the decision under review.

    Proceedings before this Court

13. The application for judicial review was filed on 30 July 2018 which is within 35 days of the dates of the Tribunal decision, as required by s 477(1) of the Migration Act.

14. By an amended application filed on 29 July 2022, the applicant raises a single ground:

    The Second Respondent fell into jurisdictional error by misapplying or misunderstanding the test in 500.212(a) of Schedule 2 to the Migration Regulations 1994.

    Particulars

    a.At [16] of its decision, the Second Respondent took into account the applicant’s inability to complete a higher education degree in determining whether he intended to genuinely stay in Australia temporarily.

    b.The applicant’s inability to complete a higher education degree is irrelevant to the Applicant’s intention to genuinely stay in Australia temporarily.

15. Both parties filed written submissions in accordance with orders made by the Court. I have had regard to the parties’ written and oral submissions and refer to them where necessary in my consideration of the ground below.

    Consideration

16. The applicant’s ground asserts that the Tribunal decision is affected by jurisdictional error because the Tribunal took into account an irrelevant consideration. In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40, Mason J (as his Honour then was) said at [15(b)] (emphasis added):

    What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard…

17. The applicant’s ground alleges an error at [16] of the Tribunal’s reasons, where the Tribunal said:

    The applicant stated that he finished high school back in his home country and decided to come to Australia because it was a good place to study. Originally, according to the applicant, he came here to study a Diploma of Computing and a Bachelor of Information Technology but found the study was too difficult and was unable to continue these studies. The Tribunal is concerned by this evidence as the applicant was granted a visa with the expectation that he would study at higher education level. The applicant acknowledged to the Tribunal that he has only been able to study at VET level.

18. It is worth noting that [16] is not the only paragraph where the Tribunal had regard to the applicant’s failure to complete his tertiary level studies. This was also considered or referred to:

    (a)at [15], where the Tribunal recorded that according to the applicant, ‘despite being granted a student (class TU subclass 573) visa with the expectation he would complete a bachelor degree, the applicant ceased his higher education studies and has only studied successfully at VET level’;

    (b)at [22], where the Tribunal recorded that when asked why the applicant has such a large number of disparate and completely unrelated enrolments, ‘the applicant stated that he failed in his original enrolments because he became demoralised by the study and found it difficult to continue’; and

    (c)at [24], where the Tribunal recorded that ‘[t]he applicant also acknowledged that he could not undertake high[er] studies at that time and could not pass the units necessary even after repeating those units’.

19. In deciding whether the applicant met the genuine temporary entrant criterion in cl 500.212 the Tribunal was required to have regard to the relevant legislation and the factors in Direction No 69. There is nothing in the terms of the relevant legislation or in the subject-matter, scope and purpose of the legislation that expressly or by implication restricts the Tribunal from taking into account the applicant’s inability to complete his tertiary studies. To the contrary, the legislation allows the Tribunal to have regard to any matter it considers relevant. This can be seen from the terms of cl 500.212(a), which relevantly provide (emphasis added):

    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…

20. I accept the Minister’s submission that the applicant’s past study history is relevant to a number of paragraphs in Direction No 69, including:

    (a)paragraph 4(c), which suggests that further scrutiny may be appropriate where an applicant intends to study in a field unrelated to the previous studies and employment;

    (b)paragraphs 11(b) and (c), which direct that in considering an applicant’s potential circumstances in Australia, a decision-maker should have regard to evidence that the student visa programme is being used to circumvent the intentions of the migration programme and whether the student visa is being used to maintain ongoing residence;

    (c)paragraphs 12(a) and (b), which direct that in considering the value of a course to an applicant’s future, decision-makers should have regard to, amongst other things, whether the student is seeking to undertake a course that is consistent with their current level of education, and the relevance of the course to the student’s past or proposed future employment;

    (d)paragraph 14(b)(iii), which suggests that when considering an applicant’s immigration history, a decision-maker should have regard to the amount of time the applicant has spent in Australia and whether the student 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; and

    (e)paragraph 16, which says that decision-makers should also have regard to any other relevant information provided by the applicant.

21. At the hearing before the Court, counsel for the applicant acknowledged that the range of factors to which the Tribunal may have regard in assessing the genuine temporary entrant criterion were broad, and did not express concern with any of the Tribunal’s references to the applicant’s failed tertiary studies other than that at [16]. Indeed, counsel for the applicant conceded that it was open to the Tribunal to take into account the applicant’s failed tertiary studies and his completion of many short and unrelated vocational courses in its assessment of whether he intends to stay in Australia temporarily.

22. Rather, counsel for the applicant submitted that it is the differentiation between tertiary level study and study at the VET level, reflected in the final two sentences of [16] of the Tribunal’s reasons, which was an irrelevant consideration. The applicant submitted that, at the time of the decision, he was enrolled in a Certificate IV in Commercial Cookery, which was a full-time registered course for the purpose of the primary criterion for the student visa. The differentiation between tertiary and VET level study was said to be irrelevant because the Regulations clearly envisage that the criteria for a student visa can be met where an applicant is enrolled in VET level study.

23. I do not accept this submission. Irrespective of whether the applicant’s enrolment at the time of the Tribunal decision was for a tertiary qualification or for study at the VET level, it was open to the Tribunal to have regard to the applicant’s past study and enrolment history. There is nothing in the subject-matter, scope and purpose of cl 500.212(a) from which I can infer any limitation on the permissibility of the Tribunal taking into account the applicant’s change in study from tertiary level to VET level study, or that the reason for this was his inability to maintain his tertiary studies.

24. Further, the Tribunal’s reasons need to be read as a whole. The Tribunal’s concerns about the applicant’s study history, in the context of whether he genuinely intended to stay in Australia temporarily, were not simply that the applicant came to Australia to study at the tertiary level and has only completed courses at the VET level. Rather, the Tribunal’s concern was that the applicant had enrolled in a large number of seemingly disparate courses without offering any adequate explanation for this, and that he seemed unable to conform to any stated study plan or career orientation. The Tribunal accepted that students can make reasonable changes to their pathways, but in the context of the applicant’s multiple changes of courses over a significant period, the Tribunal considered that the applicant was using the student visa programme to maintain ongoing residence in Australia. It was open to the Tribunal to take into account the applicant’s original intention to undertake tertiary studies, and his failure to complete those studies, as part of this assessment. 

25. The ground raised by the applicant does not establish jurisdictional error.

    Conclusion

26. Given that I have found that the applicant has not established jurisdictional error, the application for judicial review must be dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       2 September 2022