Shrestha v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 147
Federal Circuit and Family Court of Australia
(DIVISION 2)
Shrestha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 147
File number(s): SYG 178 of 2022 Judgment of: JUDGE LAING Date of judgment: 2 March 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether it was open to the Tribunal to find that the applicant did not meet the genuine temporary entrant criterion based upon the evidence before it – whether the Tribunal failed to consider evidence – allegation of bias – allegations against the Delegate’s decision and disputation of the relevant framework generally – application dismissed. Legislation: Migration Act 1958 (Cth) ss 359, 476, 499
Migration Regulations 1994 (Cth) Schedule 2, cl 400.211, 400.212
Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications
Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906; (2000) 100 FCR 495
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 22 February 2023 Place: Sydney Solicitor for the Applicant: The applicant appeared by telephone with the assistance of a Nepalese interpreter. Solicitor for the First Respondent: Mr B. Wilson (Sparke Helmore) appeared in person. Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 178 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANTOSH KAMAL SHRESTHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
2 March 2023
THE COURT ORDERS THAT:
1.The application be 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 LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
BACKGROUND
The applicant is a citizen of Nepal. On 11 September 2019, he applied for a student visa.
The Delegate refused the application on 4 February 2020. The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (genuine temporary entrant criterion) could not be met.
On 21 February 2020, the applicant sought review of the Delegate’s decision by the Tribunal.
On 3 September 2021, the Tribunal sent the applicant (care of his agent) an invitation to comment upon matters relevant to the applicant’s enrolment and ability to satisfy the genuine temporary entrant criterion. Material was provided on behalf of the applicant in response.
The applicant attended a hearing before the Tribunal on 21 October 2021.
On 7 January 2022, the Tribunal affirmed the Delegate’s decision.
ReLEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
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; and
(b)the applicant intends to comply with any 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) of any other relevant matter.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
TRIBUNAL’S DECISION
The Tribunal summarised the background to its decision as well as the evidence before it at [1]-[31] of its decision, before setting out the relevant criterion in issue and the effect of Direction No. 69 at [32]-[34].
At [35], the Tribunal expressed its findings regarding the genuine temporary entrant criterion as follows:
35.The Tribunal has considered the evidence, provided by the applicant, in the context of Direction 69 and finds that the applicant is not a genuine temporary entrant for the following reasons:
a.The applicant confirmed in evidence that he has not completed any course of study since arriving in Australia on a Visitor 600 Visa in May 2019 and applying for a Student 500 Visa on 19 September 2019 and enrolling in a Certificate IV Commercial Cookery course to commence in October 2019. The Tribunal finds that the incomplete study based upon the evidence of the applicant after a 2 year period is not consistent with the expected behaviour of a genuine temporary applicant for entry and stay as a student;
b.The applicant confirmed in evidence that he currently has Confirmations of Enrolment to undertake registered courses of study that he has not either completed or commenced since arrival in Australia. The Tribunal is not satisfied regarding the genuine interest in study and seriously questions the purpose of the applicant's stay in Australia, particularly given that he has no work rights with an 8101 visa condition and has been engaged in unpaid work at his brother-in-law's restaurant for which he declared he was provided 'pocket money'. As such, the Tribunal finds that the applicant has been in breach of his visa condition 8101 and has not completed studies, with outstanding assignments, during the period of enrolment;
c.Whilst the Tribunal acknowledges that the applicant has immediate family in Nepal and strong ties to his home country, the evidence also suggests that the applicant has strong ties to his sister and brother-in-law with whom he has been living with in Australia and assisting in their restaurant on a stated unpaid basis. The Tribunal is not satisfied that the applicant is a genuine temporary resident and is maintaining a lifestyle and residency in Australia that does not demonstrate a commitment to pursuing studies given the extended period of stay without completing any course of study;
d.The Tribunal is not satisfied as to how the applicant will improve his career prospects and future income given the cost of education involved in completing courses in Australia relative to undertaking such courses in his home country. As such, the lack of advice concerning future job opportunities, other than general assertions, or details of a specific business plan does not provide adequate weight to the substance of choosing the Commercial Cookery and Diploma of Hospitality Management courses intended to be studied;
e.The Tribunal gives some weight to the fact that the applicant provided evidence that study may be impacted by the pandemic, but the applicant has not completed any course of study for a period of 2 years, up to the time of hearing, which indicates the applicant is not motivated to genuinely involve himself in the courses of study advised to the Department in his application. This, in the Tribunal's view, does not demonstrate a genuine purpose of stay in Australia as a student and leads to the finding that the motivation is to maintain residency and lifestyle in Australia. The Tribunal would have expected the applicant to have made good use of his time in Australia if he was a genuine temporary entrant for stay as a student.
At [36]-[38], the Tribunal considered:
36.The Tribunal gives weight to the lack of academic progress, since the commencement of studies in October 2019, when the stated purpose was to remain in Australia for the purposes of academic study. The applicant has exhibited an extended period of time where no study has been completed and without starting the courses for which confirmations of enrolment were held, including an admission, at hearing, of outstanding assignments.
37. Further, there is no evidence before the Tribunal that would suggest that the applicant has any valid reason for not returning to Nepal and to the contrary the Tribunal finds that the applicant has developed a desire to remain in Australia for the purposes of residency and the lifestyle and potentially other undisclosed purposes.
38.Based on what is evidenced of the applicant's circumstances overall, in the absence of any other relevant information, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely enter Australia temporarily having regard to the evidence advanced and considered cumulatively above.
On this basis, the Tribunal found that cl 500.212 was not met and therefore affirmed the Delegate’s decision (at [39]-[41]).
proceedings before this court
By an application filed on 7 February 2022, the applicant applied for judicial review of the Tribunal’s decision relying upon the following grounds:
1.The AAT made an error in not because the student (myself) was currently enrolled and studying the course. The AAT has erred in applying the time of decision criteria to the refusal of visa application which was also based on not meeting Genuine student intentions.
2.The AAT requested me to share the study details over the past years since I lodged the review and after the visa refusal. I was able to prove that I was in continuous enrolment since Oct 2019 till date. I am also enrolled in a study course which ends in Sep 2022. Still the Tribunal based its decision on a subjective understanding that I am not a Genuine Student.
3.The AAT did not consider the fact that the COE is proof enough that I am enrolled and studying as a student is meant to be. I was first enrolled from 10/2019 till 07/2021. If there is some thought given to the period, the time aligns with the peak pandemic period, and I have mentioned in my AAT response that the College was closed for substantial part and studies were very disruptive during the past 2 years of the covid pandemic.
4.Therefore, the delay in course completion is a given as the situation is not in my control. Instead of being lenient with the legislative requirement, the AAT was harsh on handing out the decision.
5.During the time of AAT hearing, I was studying and have paid fees in full. No consideration was made to this fact and the decision was very biased towards the decision of Home Affairs which itself is a wrong decision.
6.Having my sister and brother-in-law in Australia is a big support for me as I can focus on my studies and learning. Instead having relative in Australia has been seen as a negative mark towards the so-called GTE criteria. How does a family support weaken the study intention? Instead, it should be looked at as a strength.
7.The Department of Home Affairs was Unfair in the decision to refuse the Visa application in 04 Feb 2020. There was “no request for further information” or explanation sought from me before reaching the decision that study intention is “Not genuine”.
8.I challenge the legislative and regulatory and policy framework for the student visas which lays emphasis on a very subjective criteria giving more powers to the decision makers in refusing visas based on their pre-assumptions rather than considering the facts of the matter.
Grounds 1 to 4 and 6
Grounds 1 to 4 contended that the Tribunal erred in finding that the applicant did not meet the genuine temporary entrant criterion in circumstances where he was enrolled and studying and his study had been impacted by COVID-19.
Enrolment was a criterion for the grant of the student visa: cl 500.211 of Schedule 2 to the Regulations. However, beyond that the Tribunal was required to assess, by reference to cl 500.212 and Direction No. 69, whether the applicant met the genuine temporary entrant criterion. Whilst enrolment may be relevant to that criterion, it was not, in and of itself, necessarily sufficient to meet it.
The Tribunal was conscious of the period in which the applicant was enrolled: [16]-[17] of its decision. However, the Tribunal was nonetheless not persuaded that the applicant met the genuine temporary entrant criterion. This was considering what the Tribunal regarded as being the applicant’s lack of academic progress and other circumstances it was required to consider in accordance with Direction No. 69 (at [35]-[38]). Whilst the Tribunal gave some weight to the applicant’s evidence that his study was impacted by the COVID-19 pandemic, it was not persuaded that this adequately explained why the applicant had not completed any course of study for a period of some years (at [35](e)). This reasoning was intelligible. The applicant has not demonstrated how it could be said to have been closed to the Tribunal, based upon the evidence that was before it. Nor is any such basis apparent upon my own review of the materials.
It has similarly not been demonstrated that it was closed to the Tribunal to have found that the applicant’s ties to Australia, in the form of his sister and brother in-law with whom he had been residing, informed the question of whether the applicant was a genuine temporary entrant. The Tribunal was obliged to consider the applicant’s ties to Australia, such as family, which would present a strong incentive to remain: [11(a)] of Direction No. 69. The Tribunal was not obliged to consider the applicant’s family in Australia to be “a strength” within this context, as was suggested under ground 6.
It follows that grounds 1 to 4, and ground 6, are unable to succeed.
Ground 5
Ground 5 contended that the Tribunal failed to consider that the applicant was studying and had paid his fees. It also contended that the Tribunal was biased in incorrectly affirming the Delegate’s decision.
The Tribunal considered the applicant’s evidence that he was enrolled and studying at [16]-[17], [19] and [35] of its decision. At [35(d)], the Tribunal referred to the cost of education in Australia relative to the cost of such courses in the applicant’s home country. This reflected an understanding that the applicant had been enrolled and undertaken some study, and that this had involved a level of cost. I am therefore not persuaded that the evidence regarding the applicant’s enrolment, study and payment of fees was overlooked.
However, the Tribunal was not persuaded by the applicant’s evidence regarding how the course would improve his career prospects and income, relative to its cost. This evidence was considered to have involved “general assertions” (at [35(d)]. Taking this into account, together with what the Tribunal had found regarding the applicant’s ties to Australia and lack of academic progress, the Tribunal concluded that the applicant did not meet the genuine temporary entrant criterion. Whilst another decision maker may well have reasoned differently, it has not been demonstrated that this reasoning was relevantly closed to the Tribunal.
Nor has it been demonstrated how the high thresholds for grounds such as actual or apprehended bias are capable of being met. It is well settled that a contention of actual bias is a serious matter which carries a heavy onus. It requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J. Apprehended bias is similarly difficult to establish. It requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [33] per Gleeson CJ and McHugh, Gummow and Hayne JJ.
In addition to inviting the applicant to a hearing, the Tribunal in this case sent to the applicant an invitation to comment under s 359(2) of the Act. This indicated that the Tribunal was open to persuasion, including by reference to evidence that was not before the Delegate. The fact that the Tribunal was ultimately not persuaded by the additional evidence that was provided does not demonstrate bias. The high thresholds for such grounds are incapable of being met on the evidence that is before the Court.
It follows that ground 5 is unable to succeed.
Ground 7
Ground 7 contended that the Delegate’s decision was unfair, as further information was not sought from him before reaching a decision.
However, this Court has no jurisdiction to review the decision of the Delegate: s 476 of the Act. Further, any defects or irregularities in the Delegate’s decision would have been “cured” by the Tribunal’s decision on review: see Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906; (2000) 100 FCR 495 at [92]–[96].
Ground 7 is therefore unable to succeed.
Ground 8
By ground 8, the applicant sought to “challenge the legislative and regulatory and policy framework for the student visas”. The applicant may well disagree with this framework. However, that disagreement does not empower the Court to set aside the Tribunal’s decision (much less the legislative, regulatory or policy framework under which it was made).
Other matters
In an affidavit filed with the application, the applicant contended that his delay in completing his courses of study was affected by health and mental issues, including as a result of having a COVID-19 infection. However, he did not point to any evidence that was before the Tribunal in this regard, beyond that which was considered by the Tribunal at [19] of its decision. As set out above, whilst the Tribunal appears to have accepted that the applicant’s study may have been impacted by the pandemic, it did not accept that this entirely explained his lack of academic progress since arriving in Australia (at [35]). It has not been demonstrated that this reasoning was closed to the Tribunal, based upon the material that was before it.
At the hearing before this Court, the applicant stated that he had made a mistake in working for pocket money without work rights and that he had been unable to complete his course due to stress and not having enough money. He explained that he was no longer living with his family in Australia, that he was under a significant amount of stress and that he wanted to be granted a student visa. I am not unsympathetic to the applicant’s position. However, the Court’s powers on judicial review are limited. The Court has no power to grant the applicant a visa. All the Court is able to do is consider whether the Tribunal’s decision was materially affected by any legally relevant error. As I have not identified any such error, the application is unable to succeed.
conclusion
For these reasons, the application before this Court must be dismissed.
I will hear the parties in relation to costs.
35 I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 2 March 2023
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