Sapkota v Minister for Immigration

[2014] FCCA 1322

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAPKOTA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1322

Catchwords:
MIGRATION – Student visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal took an irrelevant consideration into account, failed to take a relevant consideration into account and failed to consider all of the applicant’s claims.

Legislation:

Migration Act 1958, ss.474

Migration Regulations 1994, cl.572.223 of sch.2
Migration Amendment Regulations 2011 (No.6), reg.4, item 5 of sch.2
Migration Legislation Amendment Regulation 2012 (No.1), reg.6, item 12 of sch.4

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Pandey v Minister for Immigration & Anor [2013] FCCA 453

Applicant: SHIVA LAL SAPKOTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2420 of 2013

Judgment of: Judge Cameron

Hearing date: 27 May 2014

Date of Last Submission: 27 May 2014

Delivered at: Sydney

Delivered on: 24 June 2014

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Parish Patience

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2420 of 2013

SHIVA LAL SAPKOTA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Nepal, applied for a Student (Temporary) (Class TU) subclass 572 visa on 15 March 2011. On 11 May 2011 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he had not satisfied cl.572.223 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time the decision was made on his visa application was cl.572.223. At the time the applicant applied for the visa, cl.572.223 relevantly provided:

   572.22 – Criteria to be satisfied at time of decision

   …

   572.223

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

   (2)    An applicant meets the requirements of this subclause if:

   (a)for an applicant who is not a person designated under regulation 2.07AO:

   (i)     the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (ii)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (A)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (B)any other relevant matter; and

   (iii)   the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; …

2. That version of cl.572.223 was subsequently amended but it continued to apply to the applicant at the time of the Tribunal’s decision (reg.4 and item 5 of sch.2 to the Migration Amendment Regulations 2011 (No.6) and reg.6 and item 12 of sch.4 to the Migration Legislation Amendment Regulation 2012 (No.1)).

Background facts

1. As already noted, the delegate refused the applicant’s visa application on 11 May 2011.  The delegate’s decision was based on a finding that the applicant had not substantiated that he had financial capacity to support his studies in Australia.

2. After the delegate’s refusal of his visa application, the applicant sought a review of that decision with the Tribunal.  On 19 April 2013 the Tribunal wrote to the applicant inviting him to comment on or respond to information which it considered could be the reason, or part of the reason, for affirming the delegate’s decision.  Relevantly, that information was that there was no indication that he was studying at that time or had studied in Australia since 26 October 2011.  The Tribunal noted that the applicant had been enrolled in an Advanced Diploma of Accounting course from 5 October 2010 to 21 September 2012 which had been cancelled on 26 October 2011 for unsatisfactory course progress and that in the fifty-two months since his arrival in Australia on 7 January 2009 on a student visa, he appeared to have studied for, at most, only thirty-two of those months.

3. In response the applicant’s migration agent relevantly submitted that the applicant had discontinued his studies after the delegate refused his visa application because he had been shocked by the decision and could not focus on his studies.  It was submitted that the applicant had also reasoned that if the Tribunal affirmed the delegate’s decision then the money he would have spent on the course would have been wasted.  The applicant’s agent also submitted a letter from the Holmes Institute offering the applicant a place in a Diploma of Accounting course commencing on 26 August 2013.  The letter was dated 23 May 2013 and in a footnote indicated that the offer was only valid for twenty-six days from the date of the letter. 

4. At a hearing before the Tribunal on 8 August 2013 the applicant claimed:

   a)he was enrolled in a Diploma of Accounting course commencing on 26 August 2013.  He did not know the units he would be studying but they would include accounting, finance and marketing;

   b)he had not received a confirmation of enrolment as he had not yet paid his fees but he would be doing so shortly.  He had been reluctant to pay the fees because if he did not get a visa it would be a waste of money; and

   c)he had been keen to continue studying but his lack of a visa had distracted him and made it difficult for him to focus.  Some of his friends had told him that he could continue studying while waiting for a decision on his visa but others had told him that the expense and effort of studying would be in vain if he did not get the visa.

5. The applicant’s migration agent also submitted at the hearing that despite the notation in the offer letter from the Holmes Institute about the offer’s period of validity, in practice the letter remained valid until all the places in the course were filled. 

6. During the hearing the Tribunal put to the applicant and his agent that the applicant’s lack of study from October 2011 and his obtaining of a letter of offer a month after receiving its 19 April 2013 letter could indicate that his only reason for enrolling in the course was to satisfy its concerns, that he was not a genuine student and that if it set aside the delegate’s decision he would not in fact continue his studies.  Following the hearing, on 12 August 2013 the applicant’s agent submitted a confirmation of enrolment for the applicant in a Diploma of Accounting course at the Holmes Institute commencing on 26 August 2013. 

The Tribunal’s decision and reasons

1. The Tribunal was satisfied that the applicant was enrolled in a Diploma of Accounting course with the Holmes Institute. However, it was not satisfied that the applicant’s actions in enrolling in that course had been motivated by a genuine desire to study and found that his enrolment had only been for the purpose of satisfying its concerns. The Tribunal therefore found that the applicant was not a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(a)(ii) of sch.2 to the Regulations. In this connection the Tribunal noted that:

   a)after his course was cancelled for unsatisfactory progress on 26 October 2011, the applicant had made no attempt to enrol in any course of study until May 2013, one month after it wrote to him seeking his comments on the lack of evidence that he had been studying or enrolled in a course of study;

   b)although he had received a letter of offer dated 23 May 2013, the applicant had done nothing to obtain a confirmation of enrolment by the date of the Tribunal hearing on 8 August 2013 and had only provided a relevant confirmation of enrolment on 12 August 2013; and

   c)the applicant was ignorant of the subjects that his proposed course would cover.  The Tribunal found that the applicant’s responses to questions put to him about his proposed course did not give any impression that he had thought about the course in any depth, had taken steps to inform himself about it or had any very clear idea as to how it might benefit him.

2. The Tribunal considered the applicant’s explanations for his failure to continue his studies after October 2011, that he had been unable to concentrate on his studies after receiving the delegate’s decision, had been unwilling to enrol in a course when he was unsure of the outcome of his visa application and had not wished to risk losing his tuition fee if he was not granted the visa.  However, the Tribunal found that the applicant had been clearly aware that he was not prevented from studying while waiting for its decision because he had continued with his course for seven months after his previous student visa had expired in March 2011 and confirmed that he had been told by friends that further study was possible.

Proceedings in this Court

1. In his further amended application the applicant alleged:

   1.The Tribunal erred by applying the wrong test to the visa criterion in Migration Regulations 1994 Part 2 cl 572.223(2)(a)(ii) as applied to the visa application

   Particulars

   (a)The Tribunal based its decision on an interpretation of the applicant’s conduct that led it to believe that his current enrolment was not “motivated by a genuine desire to study” and “its only purpose has been to satisfy the Tribunal’s concerns”.  These are not relevant considerations in relation to the criterion in question.

   (b)The Tribunal failed to make a determination based on relevant considerations as to whether the applicant satisfied the criterion in cl.572.223(2)(a)(ii) as applied to the visa application.

   2.The Tribunal committed jurisdictional error in not considering the whole of the applicant’s reasons as to why he did not study between October 2011 and August 2013.

   Particulars

   (a)It was claimed inter alia by the applicant, and in his advisor’s submissions that his studying without a student visa may result in his having studied and put in the effort for no result.

Ground 1

1. A concern of cl.572.223 is that a person who is granted a student visa actually undertakes the study for which the visa is granted. The applicant submitted that motivation to study was not something which the law required the Tribunal to take into account when deciding that question and, while that may be so, such motivation, or lack of it, was not something which the law barred the Tribunal from considering. Given the statutory context, namely determination of whether the applicant was a genuine applicant for entry and stay as a student, an issue touching on the genuineness of his claimed intention to study was plainly a relevant matter. Consequently, the Tribunal’s consideration of that issue did not amount to legal error.

2. The applicant also argued that the law required the Tribunal to consider what significance being on a bridging visa after his student visa was refused might have had on his pursuit of his studies but it failed to do so.  He referred in this regard to the fact that his bridging visa did not require that he study and that it was only a temporary visa with an unknown end date.  He submitted that those features of his bridging visa provided legal and practical reasons for not studying.

3. I do not accept this argument.  The bridging visa did not prevent the applicant from studying, it simply did not require it.  Consequently, if the applicant had wished to pursue his studies he could have done so.  As already noted, the genuineness of the applicant’s claimed intention to study was at the heart of cl.527.223’s role in the Tribunal’s review.  The fact that the bridging visa did not require study was not relevant to that issue and so it was not a matter which the law required be taken into account when the Tribunal was considering the genuineness of the applicant’s claimed intention to study.

4. Similarly, the fact that the bridging visa was a temporary visa and would expire if the applicant’s application to the Tribunal was unsuccessful also had no significance for the determination of the genuineness of his desire to study in Australia.  The temporary nature of the visa did not prevent the applicant from studying and was irrelevant to determining whether his claimed intention to study was genuine.

Ground 2

1. The applicant submitted that the Tribunal had failed to consider one of the bases for his disinclination to study after October 2011, while on the bridging visa, namely that it might be a waste of time and effort.  He submitted that the Tribunal had taken into account his concern about wasting the tuition fee if he was not granted the visa he sought, but had not considered that other basis for him being discouraged from studying.  The applicant submitted that this matter was an element of his case which the Tribunal was required to consider and so its failure to do so amounted to error. 

2. Again, I do not agree.  As already observed, a question the Tribunal had to determine was whether the applicant’s claimed intention to study was genuine.  One matter which the Tribunal considered was relevant to deciding that question was the fact that the applicant had not studied after October 2011, while he was on the bridging visa.  The applicant sought to explain that failure by pointing to the potential waste of money and effort which such study might involve if he was not ultimately granted the student visa he sought.  Contrary to the applicant’s allegation, the relevant issue was not why the applicant thought that further study in the period in question might be a waste or whether his reasons for that opinion were sufficient, but whether the desire to avoid the waste involved in abandoning a course of study if the visa was not granted justified the applicant’s failure to study.  The Tribunal did consider that issue.

3. What the applicant has characterised as an issue which had to be considered was in fact only one of the factual matters which he had advanced to the Tribunal as the basis for his disinclination to study.  If the Tribunal did fail to consider that matter, as appears to have been the case, that was only a failure to consider evidence.  Given the way the Tribunal expressed its reasoning in para.25 of its decision record, basing its concern that the applicant had not continued to study on the absence of a visa impediment to doing so, such a failure had no effect on its decision and thus did not amount to jurisdictional error.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 24 June 2014