Sanjel v Minister for Home Affairs
[2019] FCCA 1436
•28 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANJEL v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1436 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal failed to properly construct reg 500.212 of the Migration Regulations 1994 – whether the Tribunal made a decision that was irrational, unreasonable or capricious or devoid of any intellectual process – whether the Tribunal made irrelevant findings – whether the Tribunal misunderstood or misconstrued the statutory intention – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.499 |
| Cases cited: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | MAHESH SANJEL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 945 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 28 May 2019 |
| Date of Last Submission: | 28 May 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 28 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Solicitors for the Respondents: | Mr Leerdam, DLA Piper |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5500.00.
DATE OF ORDERS: 28 May 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 945 of 2018
| MAHESH SANJEL |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EXTEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is a citizen of Nepal. He is 29 years of age. He departed Nepal in 2008 after completing the equivalent of year 12 for Australia. The applicant has been in Australia since then on either a student or a bridging visa on a continuous basis. The applicant lives with his brother and sister-in-law in Australia. The applicant’s parents and sisters live in Nepal.
On 28 September 2016, the applicant applied for a Student (Temporary) (Class TU) visa. On 29 September 2016, a delegate of the Minister refused to grant the visa. The applicant then appealed to the Administrative Appeals Tribunal (“the Tribunal”). This appeal was heard on 8 March 2018. On 13 March 2018, the Tribunal affirmed the decision not to grant the applicant a further Student (Temporary) visa. Mr Sanjel now seeks judicial review of the Tribunal’s decision.
The Tribunal’s Decision
The Tribunal noted that at the time of its decision, the applicant should have completed the Bachelor of Professional Accounting. The Tribunal noted that the applicant wished to continue to study a Master of Professional Accounting and a Master of Business Administration. The applicant had been offered these two courses, but had not at that time enrolled. These courses would have finished on 21 June 2019 and October 2019 respectively. By that time, the applicant would have been in Australia for 12 years on a continuous basis.
At paragraph 18, the Tribunal set out the requirements under the Migration Regulations 1994 (“the Regulations”). Regulation 500.212 requires 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;
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 the 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) any other relevant matter.
At paragraphs 21 to 22 of the Tribunal’s decision, it considered the applicant’s personal circumstances and his history. The Tribunal concluded that the applicant had stronger ties to Australia than Nepal. The Tribunal rejected the applicant’s evidence of a girlfriend in Nepal and his intent to return home to marry her.
At paragraphs 23 to 27, the Tribunal considered the applicant’s academic progress. The Tribunal noted that over the 10 year period, the applicant had only completed a Diploma of Management in 2014, a Diploma of Business in 2016 and that he had nearly finished a Bachelor of Professional Accounting. The applicant also has an Advanced Diploma of Accounting which he completed in 2010.
At paragraph 27 of the Tribunal’s decision, it concluded that the applicant’s academic progress was not consistent with a genuine application for entry and stay as a student. The Tribunal also considered that the applicant had enrolled in further courses and came to a view that this was to extend his stay onshore and to maintain his residence. The Tribunal found no reliable or documentary evidence that the applicant intends to return to Nepal in the near or distant future even to visit.
It is also important when considering the law to look at Ministerial Direction Number 69 which was signed off by the Minister for Immigration and Border Protection. It is required by the law that any decision-maker must take into account the directions contained within Direction Number 69. The power for the Minster to give the direction being found within s 499 of the Migration Act 1958 (Cth). During the course of submissions, Mr Young made reference to the preamble of Direction Number 69 and the most relevant part appears to me to be the following:
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period or permanently.
Clearly that Direction needs to be taken into account.
The preamble then goes on to say that the decision-maker needs to have regard to the applicant’s circumstances, his migration history and intentions if he is a minor, which is not relevant here, or any other relevant matter.
Part 2 of Direction Number 69 requires a decision-maker to have regard to whether or not the applicant has an immigration history of reasonable concern. At paragraph 7 of Direction Number 69, a decision-maker is required to have regard to the following:
For primary applicants of a Subclass 500 Student visas, decision-makers should have regard to the value of the course to the applicant’s future.
That is a matter I will refer to later.
Paragraph 8 requires that:
Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
At paragraph 11 of Direction Number 69, a decision-maker is required to have regard to the applicant’s potential circumstances in Australia, including at subsections (b) and (c):
(b) Evidence that the student program visa is being used to circumvent the intentions of the migration programme; and
(c) Whether the Student visa or Student Guardian visa is being used to maintain ongoing residence.
At paragraph 12 of Direction Number 69, a decision-maker is required to 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.
In terms of the applicant’s migration history, at paragraph 14 of Direction Number 69, the decision maker is required to consider previous travel to Australia and other countries, including subsection (b)(iii):
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.
Grounds of Appeal
The grounds of appeal are set out in the application that was made to this Court by the applicant. There are five grounds set out, these being:
1) The second respondent made jurisdictional error by making a legal error as to the construction of regulation 500.212 of the Migration Regulations 1994.
2) The second respondent made a decision which was irrational, unreasonable or capricious or devoid of any intellectual process by stating that it gave the applicant’s claim that he intended to return home to his parents “little credit”.
3) The second respondent made jurisdictional error at [27] by making findings about academic progress which were entirely relevant to the relevant statutory inquiry, namely, whether the applicant intended to stay in Australia temporarily;
4) The second respondent made jurisdictional error by misunderstanding or misconstruing the statutory interpretation and construing ‘temporarily’ as meaning in the near future.
5) The second respondent made jurisdictional error by creating subjective views about whether further study was necessary or desirable (in the respondent’s view) to add significantly to his qualifications and life experience to return to his home country as a relevant consideration in relation to whether the applicant intended to stay in Australia temporarily.
In regards to Ground 1, it has been submitted that the relevant construction of reg 500.212 of the Regulations has been considered by the Federal Court in the matter of Vidiyala v Minister for Home Affairs [2018] FCA 1973 which is a decision of Perry J. Her Honour in that matter, at paragraph 28, came to the view that reg 500.212 can be read cumulatively and that if a person fails at the first instance to satisfy the test which is set out, there is no requirement for a decision-maker to go beyond the first subsection.
Mr Young, on behalf of the applicant, submitted that in those circumstances the decision was binding upon the Court. In those circumstances, I find that the first ground of appeal cannot be made out. There has been no misreading of reg 500.212 of the Regulations.
Ground 2 asserts that the finding that the Tribunal made gave little credit to the applicant’s assertion that the applicant needed to return home to assist his parents and this finding was irrational, unreasonable, capricious or devoid of intellectual process. Credit findings are a matter of par excellence for a tribunal; Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 168 ALR 407 at paragraph 16 in the judgment of McHugh J. In my view, the credit finding that the applicant was unlikely to return home was open as the applicant had been in Australia for 12 years continuously. Also, the bar for irrational or unreasonable is very high. The fact that differing minds may come to differing conclusions does not necessarily mean that a finding is irrational or unreasonable. The authorities support my view that it was open to the Tribunal to come to the conclusion that it did in terms of credit.
In terms of Ground 3, the applicant asserts that it was wrong to take account of his academic progress to date. The applicant asserts that it was irrelevant to the question of whether he intended to stay in Australia temporarily. I accept the first respondent’s submission with respect to reg 500.212, subsection (a) of the Regulations. The Tribunal had regard as required, to Direction Number 69 which sets out the matters that I have included above, but in particular, whether or not the student visa program was being used to circumvent the intentions of a migration program and whether or not it was being used to maintain ongoing residence.
The applicant’s history was clearly a relevant matter that should be taken into account. It is required to be taken into account under Direction Number 69, specifically under subsections (7) and (8). The applicant’s history is also required to be taken into account under subsections (11)(b) and (c) of Direction Number 69. It is also required to be taken into account in relation to subsection (12)(a), that is, whether or not the course is consistent with the current level of education. The finding that the applicant’s past history was relevant and, indeed, was required to be taken into account by the Tribunal under Direction Number 69. No jurisdictional error is apparent.
Ground 4 asserts jurisdictional error by misunderstanding or misconstruing the statutory intention and construing “temporarily” as meaning in the near future. No particulars in this regard were given in the application. In submissions, it was suggested that because the applicant proposed further study, this required consideration at the time of the decision and that the Tribunal could not conclude that the applicant was enrolling for the primary purpose of extending his stay.
In my view, reg 500.212 of the Regulations supports the conclusion that the Tribunal came to. It begins with the following:
The applicant is a genuine applicant for entry and stay.
Direction Number 69 requires the entire history of the applicant to be taken into account, including whether or not he is seeking to extend his stay and is simply using the student visa to circumvent the intentions of the migration program, that being generally that a person can come to Australia, they can undertake study and then return home. I am satisfied that the finding was open to the Tribunal and no jurisdictional error is shown.
Ground 5 suggests that jurisdictional error was committed by creating subjective views about whether or not the further study was desirable or necessary. Again, the Direction Number 69 includes the requirement to consider whether or not the course is consistent with the applicant’s current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects. The Tribunal was clearly entitled under that particular requirement to consider whether or not the course was of significant value or whether or not it was being used for an alternative purpose, that meaning to maintain residence in Australia.
The fact that the Tribunal found against the applicant does not mean that there was jurisdictional error. It simply means that the Tribunal found that there was an alternative purpose other than the one that the applicant was putting forward. The applicant’s life experiences working at Hungry Jacks was also a matter that could be taken into account in the mix, and again, I simply refer to the fairly broad requirements under reg 500.212 of the Regulations, including the words, “Any other relevant consideration.” I’m satisfied that no jurisdictional error is apparent on the decision in regards to Ground 5.
Conclusion
The application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 8 July 2019
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