Shahi v Minister for Home Affairs

[2019] FCCA 1034

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAHI v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1034

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal complied with the requirements of procedural fairness – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl 500.212 of Schedule 2

Applicant: SANNI PRAKASH SHAHI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3530 of 2018

Judgment of: Judge Street

Hearing date: 16 April 2019

Date of Last Submission: 16 April 2019

Delivered at: Sydney

Delivered on: 16 April 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S Given
HWL Ebsworth Lawyers

ORDERS

1. The application in a case filed on 5 April 2019 is dismissed.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 16 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3530 of 2018

SANNI PRAKASH SHAHI

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 November 2018 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of Nepal and arrived in Australia on 6 August 2007, on a Subclass 572 visa valid until 15 March 2009. The applicant was granted further student visas to 15 March 2017. The applicant has not departed Australia since his arrival in Australia, and he applied for the visa the subject of these proceedings on 15 March 2017.

3. On 29 May 2017, a delegate found the applicant was not a genuine temporary entrant and refused the grant of the visa.

4. The applicant applied for review on 15 June 2017. The applicant was invited to and attended two hearings before the Tribunal on 17 October 2018, and then again on 6 November 2018. At the hearing on 6 November 2018, the applicant was given further time to provide information to the Tribunal, up to 13 November 2018. The applicant appeared at those hearings to give evidence and present arguments.

5. The Tribunal identified the background to the application for review and also the relevant law in respect of the “genuine temporary entrant” requirement in the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal identified what occurred at the hearings and set out the relevant law.

6. The Tribunal identified having considered the applicant’s claims against all the factors in the Direction No. 69 and found that the applicant does not satisfy the ‘genuine temporary entrant’ criterion. The Tribunal provided detailed reasons in support of the same.

7. The Tribunal referred to the applicant’s successful completion of a Diploma of Business Management and referred to the applicant’s explanations for his slow progress. In that regard the Tribunal had referred to the applicant’s gambling and psychological problems, as well as a particular medical condition. The Tribunal referred to the applicant’s explanations in relation to his slow progress and in particular his evidence as to why he is studying a Bachelor of Professional Accounting and found that the applicant’s evidence in that regard to be vague and altered from the Department to the Tribunal.

8. The Tribunal referred to the applicant’s intention to operate a hedge fund on return to Nepal and then referred to his evidence that it would be difficult to set up such a fund in Nepal due to lack of funds, and that he might work in his brother’s migration consultancy or the bank. The Tribunal also viewed that the applicant after 10 years of study in Australia should have been able to provide consistent and detailed evidence as to his future career aim. The Tribunal found the applicant’s evidence in this regard was vague and inconsistent. The Tribunal found this supported a finding that the applicant is not genuine in his reason for studying.

9. The Tribunal referred to the applicant’s evidence denying that he was using his student visa to maintain migration and referred to the applicant’s evidence that he could have applied for a different visa. The Tribunal expressly referred to the applicant being involved in a Bachelor of Professional Accounting, and that he had previously completed courses outlined in the Tribunal’s reasons, and has strong family ties in Nepal, and referred to the applicant’s assertion that he would return home, as well as medical and other reasons for not achieving course progression. The Tribunal, however, did not accept the applicant had undertaken study for the reasons claimed but found the applicant was maintaining, that is, a pathway to maintain residence in Australia.

10. The Tribunal was not satisfied the applicant intends genuinely to stay in Australia temporarily and found the applicant did not meet cl 500.212(a) of Schedule 2 to the Regulations and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 14 December 2018. The applicant’s address at time of commencement was in Homebush. The proceedings were the subject of an order on 24 January 2019, by a Registrar of the Court giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. On that occasion the proceedings were fixed for hearing today.

2. On 5 April 2019, the applicant filed an application in a case seeking to have the proceedings transferred to Melbourne. The applicant provided an affidavit in support of the same that he had currently moved to Melbourne and also referring to some proposed overseas travel. The order fixing the date of a hearing was made on 24 January 2019. It was in those circumstances that the Court was not satisfied, on the affidavit that had been filed, that it was appropriate to transfer the proceedings at that stage.

3. On 9 August 2019, an order was made listing the application in a case for hearing today, and giving the applicant leave to appear from Melbourne, on the application in a case. The applicant has appeared today in Court in person and at the commencement of the hearing the Court identified the transfer application and that the Court proposed in the circumstances with the applicant being present to dismiss the same. That course was not opposed by the applicant.

4. The Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

5. From the bar table, the applicant explained the circumstances surrounding his slow progression, irrespective of his course and the utility for him in obtaining the degree he was now undertaking. The applicant referred to a gambling problem that he had encountered, the break-up with his wife, and also psychological problem and a medical problem that he had encountered in relation to his slow progression.

6. The applicant also referred to the timing of the hearing with the Tribunal, in respect of which the applicant indicated his results were going to be made available on 12 November 2018. It is apparent that at the second hearing, the Tribunal did provide the applicant with a further opportunity to put on further information on or before 13 November 2018. The applicant did not do so. The Tribunal in this case conducted two hearings and gave the applicant a further opportunity to put on material. Prior to the Tribunal’s decision, the applicant did not inform the Tribunal that he required further time.

7. There was no unreasonableness in the Tribunal providing the applicant with the time period up to 13 November 2018 for further information in circumstances when the applicant had already had two hearings. The Tribunal’s extension of time up until 13 November 2018 cannot be said to lack an evident and intelligible justification.

8. The applicant’s submissions from the bar table otherwise invited this Court to engage in merits review. This Court does not have power to review the merits. The applicant, in the context of referring to his family, identified that his grandmother was sick and that very recently he had finally decided to go back to see his grandmother and that was the reason why he booked flights to go back to Nepal. The applicant’s reference to finally deciding to go back is inconsistent with the applicant’s assertion as to his genuine temporary entrant status. But that is not a matter for this Court to determine. Nonetheless, this Court does not have power to make fresh findings of fact in respect of the applicant’s claims.

9. The applicant also indicated that he wished to stay in Australia so that he could complete his course and asked the Court to permit him to do so. The Court has no power to decide the matter on compassionate or discretionary grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

The ground

1. The ground in the application is as follows:

   1. The tribunal denied natural justice and also failed to make relevant consideration of the evidence provided.

2. The generalised assertion that the Tribunal denied the applicant natural justice does not identify any relevant error. Insofar as the applicant, through his submissions, advanced that he obtained results that he wished to provide to the Tribunal prior to its decision, it is apparent from the reasons just given that the applicant did in fact have an opportunity to put on further information up to the time that he said his results were going to be available, which was 12 November 2018. The Tribunal in fact provided until 13 November 2018.

3. In those circumstances, it cannot be said that there was any denial of procedural fairness or any denial of natural justice in the conduct of the review by the Tribunal. No jurisdictional error arises by reason of the applicant’s assertion of a denial of natural justice.

4. Insofar as the applicant refers to a failure to consider evidence provided, there has been no evidence identified to that the Tribunal did not take into account. No jurisdictional error arises by reason of either limb of ground 1 in the application.

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  22 May 2019