SHRESTHA v Minister for Immigration
[2017] FCCA 3347
•11 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHRESTHA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3347 |
| Catchwords: MIGRATION – Student visa – applicant complaining about aspects of Tribunal hearing – applicant ordered to obtain transcript – he failed to do so – show cause – no arguable case raised that the Tribunal fell into jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), sch.2 cl.572.223 (1)(a) |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 |
| Applicant: | ROHIT SHRESTHA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2658 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 11 December 2017 |
| Date of Last Submission: | 11 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the first respondent | Mr L Brown |
| Solicitors for the first respondent | Sparke Helmore |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed on 5 December 2016 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2658 of 2016
| ROHIT SHRESTHA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(EX TEMPORE)
This proceeding was last before me on 11 October 2017. Then the proceeding was listed for a show cause hearing. On that date, the applicant urged me to consider his submissions that the Tribunal had not accorded him procedural fairness. With a view to enabling the applicant to advance the best case he could on the hearing of his application for judicial review, I permitted the applicant to have an opportunity to put before me a copy of the transcript of the proceeding before the Tribunal. However, that leave was conditional upon two things.
The first was a requirement that the applicant obtain the transcript, then file and serve it by 22 November 2017. That was not done, whether by the date ordered or at all.
The second was a requirement that the applicant paid the Minister’s costs thrown away on 11 October 2017 by making payment of the sum of $3,677.00 by 10 December 2017. Recognising that that date was a weekend, the effective date was, therefore, the following day, being today. While there may be doubt about the applicant’s compliance with the costs order, the applicant did not comply with the order for provision of transcript. As a result, I am none the wiser about the basis of the applicant’s complaints concerning any want of procedural fairness.
On 7 June 2017, Registrar Allaway of this Court ordered this case to proceed as a show cause hearing under r. 44.12 of the Federal Circuit Court Rules. That order was made by consent. On the hearing of such a case, I am required to consider whether the applicant has raised an arguable case that the Tribunal fell into jurisdictional error. The High Court’s decision in Spencer v Commonwealth of Australia[1] and the decision of the Full Court of the Federal Court in Australia in
AMF15 v Minister for Immigration and Border Protection[2] instruct that summary judgment orders should not be lightly made. I proceeded with that instruction in mind. But let me first put this case in some form of factual context.[1] Spencer v Commonwealth of Australia [2010] 241 CLR 118.
[2] AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68.
On 11 June 2015, a delegate of the Minister decided not to grant the applicant a student temporary class TU subclass 572 visa. The applicant sought a merits review of that decision. On 8 November 2016, the Administrative Appeals Tribunal heard the applicant’s application for a merits review. On 18 January 2017, the Tribunal produced written reasons for its decision. The Tribunal’s reasons were short, numbering 42 paragraphs. In those reasons the Tribunal canvased certain irregularities and contradictions in the visa applicant’s evidence. Ultimately, the Tribunal decided that the applicant was not genuinely intending on studying temporarily in Australia. The Tribunal found that the applicant did not, therefore, meet sch.2 cl.572.223 (1)(a) of the Migration Regulations 1994 (Cth).
In seeking relief in this Court the applicant relied on three grounds of review. They were narrative in nature and were not in a form that made them easy to follow. Lengthy as they are, it is necessary to record them verbatim –
1. The department should be able to see me as a genuine student because I have shown my genuine intention to study here by completing the course of Certificate III and IV of Commercial Cookery despite the immigration thought; I may not continue my study in the beginning when my student visa application was lodged to DIDP (errors in original).
2. As my student visa was refused on the ground of Genuine Temporary Entrant (GTE) criteria which my immigration case officer have thought I did not meet the GTE (errors in original). However, I took the matter to the Migration Review Tribunal, but the member also has refused my application by taking into consideration my past qualifications of Bachelor of Commerce which I could not finish when I was back home, (Nepal), which does not play any role to my current application because it is not even mentioned on my resume. But the AAT member thought I was not a genuine student then. So as a result, he refused my application. But I think it has nothing to do with my present or future because even if someone wants to pursue new career start, then he should be able to. But In fact in my situation, I have enrolled in the subject which was related to my hospitality experience which I have gained by working here in Melbourne for the past seven years when my wife was on student visa, and on top of that I have competed my Certificate III and Certificate IV of Commercial Cookery which was part of Diploma of Hospitality from Victorian Institute of Culinary Art and Technology, Melbourne as well.
3. Having said that, the questions he asked were related with 8 to 10 years back which has nothing to do with my present scenario, as I mentioned earlier. The member wanted a specific answers about time, date about what I was doing back in Nepal, subjects which my wife has studied here and in Nepal, address of my family-owned business back in hometown, how many were employed in the kitchen, how many seating in the business and so on. Obviously, all would struggle a bit if someone is looking for specific answers from you and you need a little time to think before speak that, what or when or how it happened many years back in your life. Then suddenly the member comes up with this conclusion that you have no idea, you are lying or because you are taking a few seconds to answer.
But what I think life is too busy here and everyone would need a time to recall what happened even few weeks back and I spent 8 years here in Australia. Thus it is even harder to provide all brief answers to the member of AAT that day quickly which had happened many years before. In one point, member even asked that I and my wife are even continuing our marriage to date or we just got married to come to Australia together just to stay. Anyway whatever he thinks about us, today we are a happily married couple and we always love and care each other and our family. Most of all, I am going to be a father of our first child. She is already three months pregnant, as I am writing this today (written 8 December 2016).
What I felt at one point that he had no intention to look my application fairly or seriously so that he come up with all pool of questions which has no relation to my refusal of student visa applicant on January temporary entry criteria at all. If he had, he should have considered my genuine intention to study with the following factors:
A. Completion Certificates
B. Progress Report
C. Related Work Experiences
D. Criminal History, Fraud Credit History
E. Any breach of rules or regulation of DIPBP in past years
Therefore, I do believe that equal justice for all and the department must not overlook our future, our struggle and our hard labour towards the community or country. Because we have been living here as a good immigrant who always abide with immigration rules and regulation. We never broke a single law of this country after living so many years in Australia and we never will whether department do consider our application or not.[3]
[3] Application filed 15 December 2016.
Returning to the narrative, only one ground of review hinted at jurisdictional error, namely, the passage on page 2 of the typed document. It spoke of the Tribunal not “fairly or seriously” looking at the applicant’s application. Specifically, the applicant contended that the Tribunal should have considered the genuineness of his intention to study, having regard to the matters he raised against items A to E. The Tribunal found at paragraph 32 of its reasons that the applicant’s academic progress was not that of a genuine student. That conclusion was open. To my mind, that conclusion was fairly reached on the evidence. In paragraph 35 of its reasons the Tribunal said as follows –
35. The Tribunal finds your claim that you were unaware of passing time implausible, does not accept it is reasonable to wait 7 years to commence study and finds your decision to now start studying is not in pursuit of an academic pathway, but an attempt to maintain residence in Australia.
That finding was likewise open. Similarly, the Tribunal said the following at paragraphs 44 and 45 of its reasons –
44. When I asked you how long you intend to stay in Australia, you say you do not know. I am not sure whether that means you don’t know the scheduled duration of the course or how long it will take you to complete it. The Tribunal finds that such a study program which will keep you away from home for over 10 years is a strong indicator that returning to Nepal is not a high priority.
45. Having considered your circumstances as a whole, including the issues in direction No 53, I am not satisfied you are a genuine student who intends to stay temporarily in Australia. Therefore, I find you do not meet clause 572.223(1)(a).
Today, the applicant gave evidence that, in his view, the Tribunal’s consideration of this case was unfair. In my view, the fairness of his case on a merits review application was, in fact and in law, addressed by the Tribunal. In my view, no arguable case has been raised on the hearing of this application that the Tribunal fell into jurisdictional error. To the contrary, in my view, the reasons of the Tribunal were open and were correct. My conclusion is reinforced by the fact that there was no transcript of the hearing before the Tribunal that the applicant put before me, despite an abundance of time given to him to enable him to complete that simple task.
The application is dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 25 January 2018
[4] Court Book filed 25 May 2017 at p.140.
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