Shrestha v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 539
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shrestha v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 539
File number: MLG 1031 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 6 July 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – refusal to grant Student (Temporary) (Class TU) Subclass 573 visa – whether Tribunal misapplied cl 573.223 of the Migration Regulations 1994 (Cth) – whether Tribunal failed to appropriately apply Ministerial Direction No 53 – whether Tribunal adopted a test of expectations of student visa holders without regard to cl 573.223 – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 476, 477
Migration Regulations 1994 (Cth), cll 572.223, 572.322, 573.223
Cases cited: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16
Raza v Minister for Immigration & Anor (2017) 322 FLR 1; [2017] FCCA 1272
Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238; [2016] FCA 858
Tandukar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1267
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 7 June 2022 Place: Perth Counsel for the First Applicant: Mr J Young Solicitor for the First Applicant: G&S Law Group Second Applicant: No appearance by or for the second applicant Counsel for the First Respondent: Mr E Taylor Solicitor for the First Respondent: Mills Oakley Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1031 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAMA SHRESTHA
First Applicant
YOGRAJ SHRESTHA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 JULY 2022
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 22 March 2018. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicants Student (Subclass 573) visas (student visas).
The applicants raised three grounds of application. Only the first applicant was represented at the hearing and she pressed only two of the grounds. The first applicant asserted that the Tribunal erred by misconstruing cl 573.223 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), and that the Tribunal failed to properly apply Ministerial Direction No 53. For the reasons below, I find that there is no jurisdictional error in the Tribunal decision. It follows that the application to the Court is dismissed.
BACKGROUND
The applicants are non-citizens who applied for the student visa on 7 January 2016. The first applicant was the primary visa applicant and the second applicant, who was the husband of the first applicant, was included in the application as a member of the same family unit.
On 8 July 2016 a delegate of the Minister refused to grant the applicants student visas. The delegate was not satisfied that the first applicant intended to genuinely stay in Australia temporarily as required by cl 573.223(1)(a) in Schedule 2 to the Regulations. The delegate was not satisfied that the second applicant was a member of the same family unit of a person who holds a student visa as required by cl 573.322(b).
On 25 July 2016 the applicants lodged an application to the Tribunal for review of the delegate’s decision.
On 22 March 2018 the first applicant and her representative attended a hearing convened by the Tribunal.
At the end of the hearing on 22 March 2018, the Tribunal made a decision to affirm the delegate’s decision not to grant the applicants student visas, and gave oral reasons for that decision. A written record of the reasons for decision was subsequently published on 11 April 2018.
TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the first applicant satisfied cl 572.223 in Schedule 2 to the Regulations and identified that this clause required that an applicant be both a genuine student and a genuine temporary entrant. The Tribunal also identified that it was required to have regard to the factors listed in Ministerial Direction No 53 in assessing the first applicant’s circumstances as a whole to determine whether she is a genuine temporary entrant.
The Tribunal noted that the first applicant came to Australia almost 10 years ago to study Hairdressing and Salon Management and never completed these studies, and instead had a history of studying a number of unrelated short courses in Hairdressing, Business, Dental Technology and Nursing. The Tribunal was not satisfied that the first applicant provided a satisfactory explanation for significant study gaps between May 2010 and January 2011 and between August 2011 and May 2012. The Tribunal referred to the applicant’s evidence that she had visas cancelled because she had been reported by her education providers for unsatisfactory course progress and it did not believe that the first applicant’s academic performance and explanation for her behaviour was that of a genuine student.
The Tribunal considered the first applicant’s evidence that she has family in Nepal, and that her studies would be helpful in getting a good job in hospitals, nursing homes and other health sectors, including with an NGO. The Tribunal did not accept that the first applicant had a business plan guiding her studies, and considered that while having family in Nepal may provide some incentive to return, she appeared to be settled living in Australia. The Tribunal considered that the first applicant’s current circumstances presented a strong incentive to remain in Australia and that the first applicant had not provided evidence of any incentive to return to Nepal that outweighed the Tribunal’s concerns and the first applicant’s immigration history.
Considering the first applicant’s circumstances as a whole, the Tribunal was not satisfied that the first applicant was a genuine student who intended to stay in Australia temporarily and therefore found that she did not meet cl 572.223(1)(a) in Schedule 2 to the Regulations.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed on 18 April 2018 which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application raises three grounds of review, reproduced below without alteration:
1. The Second Respondent made jurisdictional error by
(a) failing to have regard to the text of Regulation 572.223 of the Migration Regulations 1994 (“Reg 572.223”).
(b)make an error of law or applying an erroneous legal test in relation to the application of Reg 572.223.
2.The Second Respondent made jurisdictional error by applying Ministerial Direction No. 53 without regard to the terms of Reg572.223.
3.The Second Respondent made jurisdictional error by adopting test of expectations of students in relation to holders of student visas without regard to the terms of Reg 572.223.
The Minister filed an outline of submissions on 24 May 2022. The first applicant filed written submissions on 6 June 2022, one day before the hearing and well outside the timeframe specified in an Order made by a Judge of this Court on 1 October 2021. At the hearing, I granted leave to the first applicant to rely on the written submissions filed on 6 June 2022. The only evidence before the Court was the court book.
CONSIDERATION
I note at the outset that the Tribunal incorrectly referred to cl 572.223 in its decision, when the relevant clause for its consideration was cl 573.223. The first applicant and the Minister both accepted that cl 572.223 and cl 573.223 are identical in terms and nothing turned on the Tribunal’s reference to the wrong provision. I agree that the reference to the incorrect, but identically worded, provision does not give rise to jurisdictional error.
Throughout these reasons, except where directly quoting from the Tribunal’s reasons or the parties’ submissions, I will refer to cl 573.223.
Ground 1
First applicant’s submissions
The gist of the first applicant’s submission in relation to ground 1 is that the Tribunal misunderstood or misapplied the test in cl 573.223 by imposing an additional requirement that she be a genuine student.
The error is said to be evident at [6]-[8] of the Tribunal’s reasons, where the Tribunal summarised the relevant criteria as follows:
6.To satisfy 572.223 an applicant must be both a genuine student and a genuine temporary entrant.
7.To be a genuine student you must be engaged and applying yourself to a meaningful programme of study, progressing academically down an identifiable path.
8.To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily.
The significance of the error is said to be evident in the Tribunal’s comment at [37] that:
The Tribunal does not believe your study history is that of a genuine student.
The first applicant also submitted that the Tribunal’s conclusion at [48] indicated that the Tribunal misapplied the relevant test. In that paragraph the Tribunal said:
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).
The first applicant submitted that there is no requirement that she be a ‘genuine student’ and that cl 573.223 contains a ‘single requirement’ that the first applicant be a ‘genuine applicant for entry and stay as a student because … the Applicant intends genuinely to stay in Australia temporarily’. The first applicant acknowledged that whether the applicant is a ‘genuine student’ may be relevant to assessing the criteria in cl 573.223, but that the tests set out at [6] and [7] of the Tribunal’s reasons are ‘simply wrong’.
The first applicant submitted:
25.Regulation 573.223 required that the Minister be satisfied that the Applicant intended genuinely to stay in Australia temporarily. It is plainly a test of intention at the time of decision. There is not separate requirement that the applicant be a genuine student.
26.When one considers the structure of paragraphs 6 to 8 of the AAT decision it is plain that the AAT considered that there were two separate requirements, firstly that the Applicant be a genuine student and secondly that the Applicant be a genuine temporary entrant.
27.The AAT regarded the issue of intention to remain in Australia temporarily as going to only the second of these issues.
28.This is completely wrong. There is a single requirement for the satisfaction of Regulation 573.223 by the decision maker, that is that the Minister is satisfied that the Applicant is a genuine applicant for entry and stay as a student because the Minister is satisfied that the Applicant intends genuinely to stay in Australia temporarily.
29.If the Minister is satisfied that the Applicant intends genuinely to stay in Australia temporarily, the Minister will be satisfied that the Applicant is a genuine applicant for entry and stay as a Student under Regulation 573.223 or 572.223.
30.Contrary to the statements and reasoning of the Tribunal there is no separate requirement or indeed any requirement that the Applicant be a ‘genuine student’.
The first applicant relied in particular on the following comments of Judge Smith in Raza v Minister for Immigration & Anor (2017) 322 FLR 1; [2017] FCCA 1272 (Raza) at [32] (emphasis in original):
While I accept that the Minister’s argument has some force, I do not accept that, in this case that is the way in which the Tribunal reasoned. Rather, it effectively misunderstood the requirement in sub-cl.573.223(1)(a) to include the genuineness of the applicant’s stay as a student.
Minister’s submissions
The Minister’s written submissions only addressed the reference to cl 572.223 rather than cl 573.223. This is not surprising in circumstances where the applicants’ grounds were not properly particularised and the first applicant had not filed her written submissions at the time that the Minister filed submissions in accordance with the Order made by the Court.
In oral submissions, Mr Taylor submitted that the first applicant reads the Tribunal decision with an eye attuned to the perception of error. He submitted that the following comments of Logan J in Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 (Kumar) at [7] broadly summarised the Minister’s position in the present case:
This was a routine, merits based evaluation in the course of public administration. It was not just inherently specific to the material before the Tribunal but also reactive to the way in which the appellant had put his claim for the visa over the course of an administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the appellant was a genuine student. They were sufficient unto the day. Not to recognise this would be to make student visa decision-making more unwieldy, delayed and consumptive of public resources than it should be.
While acknowledging that the Tribunal may have placed greater prevalence on whether the applicant was a genuine student than the Regulations may require, Mr Taylor submitted that the relevant criteria required consideration of whether the applicant is a ‘genuine applicant for entry and stay as a student’.
Mr Taylor further submitted that the Federal Court’s comments in Tandukar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1267 (Tandukar) at [30]-[37] are directly applicable in the present case. That case related to a ground which is substantially the same as the ground raised in the present case. The Federal Court dismissed the ground for the following reasons:
30.The origin of this ground of appeal lies in the first sentence of [13] of the AAT reasons in which it said:
At hearing, the Tribunal discussed with the applicant the reasons her Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant her circumstances in Nepal and Australia, her immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.
31.The appellant submitted that the AAT’s approach was plainly wrong because cl 572.223(1)(a) only requires a determination that the visa applicant intends genuinely to stay in Australia temporarily and that there is no additional requirement that the applicant be a genuine student.
32.It is undoubted that the wording of the AAT’s reasons does not follow that of cl 572.223, however it is not erroneous for that reason. Moreover, the AAT’s reasons must be read in the context of its determination of whether cl 572.223(1) had been satisfied. The primary object of that regulation is whether the Minister is satisfied that “the applicant is a genuine applicant for entry and stay as a student” (emphasis added). It is not a regulation which merely seeks to ascribe some temporal descriptor of the applicant’s intended stay in Australia in a general sense. Its purpose and object is to ascertain whether their stay is for the purposes of being a student. Necessarily their status as a student is essential for the purposes of characterising the intended length of the visa applicant’s presence here. This was made pellucid by Logan J in Saini, whose reasons and analysis, which are set out above, should be accepted.
33.The reasoning of the learned primary judge on this point should also be accepted. The delegate was required to consider whether the applicant’s temporary presence in Australia was “as a student” and, a necessary part of that was consideration of whether the appellant’s claim to be a student was genuine. As the primary judge explained, the reference to “applicant” in cl 572.223(1)(a) must equate with the person referred to in the chapeau, being a person who is a “genuine applicant for entry and stay as a student”. The expression, “as a student” informs the description of the applicant who is a “genuine applicant”. In that way, the object of the regulation is to ensure that the applicant is a person who genuinely intends to stay in Australia as a student. The state of satisfaction referred to in the chapeau is linked to the state of satisfaction about the applicant being in Australia temporarily by the use of the word “because”: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (Kumar) [23]. Consistently with the above, the primary judge held that the matters in sub — cll 572.223(1)(a)(i) — (iv) pertained to whether the applicant’s intention to stay in Australia was genuine, but that was in relation to her intention to stay here as student. That conclusion was correct and nothing was advanced by the appellant to displace it.
34.The primary judge also held that cl 572.223(1)(a)(iv) required the AAT to take into account in assessing the genuineness of the appellant’s intention to stay in Australia temporarily, “any other relevant matter”, which would include whether the appellant was a genuine student. That analysis also ought to be adopted. That issue was particularly pertinent in the present case where the appellant had undertaken numerous VET courses, many of which were fairly fundamental and repetitive, and she had not sought to advance her education beyond that in any substantial way. The objective circumstances necessarily raised the question of whether she was a genuine student and the AAT was entitled, if not required, to consider that. Such a conclusion is fortified by the terms of the preamble to Direction No 53, set out above. As the primary judge held, that preamble fairly identified the underlying policy of the regulation and the impugned part of the AAT’s reasons was merely a paraphrasing of that part of Direction No 53.
35.The appellant has not demonstrated any error in the primary judge’s conclusion that the AAT did not err in concluding it was not satisfied in terms of cl 572.223(1) that the appellant “was a genuine applicant for entry and stay as a student”.
36.Neither did the appellant establish any error in the primary judge’s conclusion that any such error would not have amounted to a material error which would vitiate the AAT’s lack of satisfaction that the appellant met the criteria in the regulation: see Hossain and Shrestha. The essence of the AAT’s determination was that it was not satisfied that the applicant intended to stay in Australia temporarily. It articulated the several matters on which it relied to reach that conclusion, which were summarised in [21] and [22] of its reasons:
21.In the Tribunal’s view, the applicant’s study history of shifting from course to course over nine years without a clear pathway, the inconsistencies in her evidence as outlined at paragraph 17 above and the fact that she only enrolled in the Bachelor of Accounting on 18 May 2017, shortly before her hearing, lead the Tribunal to conclude that the applicant is seeking to prolong her stay in Australia.
22.On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).
37.Putting aside the question of whether the AAT determined that the appellant was not a genuine student, on the facts found by it, it is impossible to think that the AAT could have reached any other conclusion than the one which it did. Therefore, even if the AAT did ask itself whether the appellant was a genuine student, no error arose.
Mr Taylor submitted that the Tribunal in the present case was clearly concerned with the first applicant’s immigration history given its reliance on her long stay in Australia and in circumstances where it found that the first applicant had made the student visa application to maintain her residence in Australia, no other conclusion could be reached than that which the Tribunal reached.
Consideration
The starting point to consider this ground is the terms of cl 573.223 itself. This section provides:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that 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 meets the requirements of subclause (1A) or (2).
(1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a) the applicant gives the Minister evidence that the applicant has:
(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii)educational qualifications required by the eligible education provider; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2)If subclause (1A) does not apply:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c)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.
Both parties referred the Court to a number of cases. It is important, when reading the Tribunal’s reasons, and the cases referred to by the parties, to be alert to whether the writer is referring to cl 573.223, cl 573.223(1) or cl 573.223(1)(a). The level of specificity of the provision necessarily affects how one is to understand the surrounding text. Contrary to the manner in which the first applicant appears to have advanced her case, references to cll 573.223, 573.223(1) and 573.223(1)(a) are not interchangeable.
This is particularly relevant to the first applicant’s submission at [28] and [29] of her written submissions, extracted at [22] above. It is not the case that an applicant will be a genuine applicant for entry and stay as a student simply because the Minister is satisfied that the applicant intends to stay in Australia temporarily. Rather, the requirement in cl 573.223(1)(a) that the applicant genuinely intends to stay in Australia temporarily is just one of the matters of which the decision-maker must be satisfied before concluding that the applicant is a ‘genuine applicant for entry and stay as a student’ for the purposes of cl 573.223(1).
When one takes into account that the Tribunal at [6] appears to be referring to cl 573.223, rather than cl 573.223(1)(a), the Tribunal’s statement to the effect that to meet the criteria in cl 573.223 an applicant must be a genuine student and a genuine temporary entrant is not inconsistent with the following comments of Judge Smith in Raza at [6]:
While the overarching concern of this criterion is the determination of whether the visa applicant is a “genuine applicant for entry and stay as a student”, that determination must be made by the determination of two or more specific questions: first, whether the applicant intends genuinely to stay in Australia temporarily (sub-cl.(1)(a)); and secondly, in addition, whether the applicant satisfies the requirements in sub-cll.(1A) or (2). The requirements in sub-cll.(1A)(b) and (2)(b) are the same as the overarching concern of the criterion, namely whether the applicant is a “genuine applicant for entry and stay as a student”. However, and by contrast, the requirement in sub-cl.(1)(a) refers only to the intention to stay temporarily in Australia rather than the genuineness of the applicant as a student. This makes clear that there are two separate concerns in the criterion in cl.573.223 of the Regulations: the intention to stay temporarily and the intention to stay as a student.
It should also be noted that the Tribunal’s comment in Tandukar, that a successful applicant for a student visa ‘had to be both a genuine student and have a genuine intention to remain in Australia temporarily’ is not dissimilar to the Tribunal’s comment at [6] of its reasons in the present matter. The Federal Court in Tandukar found that the wording of the Tribunal’s reasons was not erroneous notwithstanding that it did not follow that of cl 572.223, and I make the same finding in the present case.
The Tribunal’s comment at [8] that to be a genuine temporary entrant an applicant’s circumstances must indicate a genuine intention to remain in Australia temporarily is clearly directed to cl 573.223(1)(a) and is not inaccurate.
The Tribunal’s ultimate conclusion, expressed at [48], was a finding that the first applicant did not meet the requirements of cl 573.223(1)(a). The Tribunal made a clear finding at [48] that the first applicant did not intend to stay in Australia temporarily and made a related finding at [44] that the first applicant was seeking to use the student visa program to maintain residence in Australia. The Tribunal also found at [47] that the first applicant’s current circumstances present as a strong incentive for her to remain in Australia.
The question raised by this ground then appears to be whether the Tribunal’s finding that the first applicant did not intend to stay in Australia temporarily and therefore did not meet cl 573.223(1)(a) was vitiated by it also finding at [37] and [48] that the first applicant was not a genuine student. In my view, the Tribunal decision is not so vitiated.
There is clear authority that cl 573.223(1)(a), and its similarly worded equivalents, is concerned only with whether the applicant intends to stay in Australia temporarily: see Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238; [2016] FCA 858 (Saini) at [28]; Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [13], [22]. However, that does not mean that whether an applicant is a genuine student can never be relevant to the determination of that question.
This can be clearly seen in Saini and Tandukar.
In Saini, Logan J said at [22]-[23] (emphasis added):
22.As to overall context, the Minister placed particular emphasis in his submissions upon the introductory paragraph in cl 572.223(1), which is known in parliamentary drafting terminology as the “chapeau” and which governs the clause of which cl 572.223(1)(a) forms a subsidiary part. This emphasis was not misplaced.
23.The introductory paragraph specifies a subject of overarching satisfaction which the Minister must hold in order for a “Student visa” to be granted. That satisfaction is that the applicant is a genuine applicant for entry and stay “as a student”. Further, the presence of the conjunction, “because” indicates that this overarching satisfaction must be reached by reason of particular criteria specified in cl 572.223(1)(a) and (b). By virtue of the reference to “any other relevant matter” in cl 572.223(1)(a)(iv), the criteria relevant to satisfaction that an applicant “intends genuinely to stay in Australia temporarily” are limited only by relevance to the subject matter, scope and purpose of cl 572.223. That subject matter, scope and purpose is to establish a class of visa to enable a person to enter and stay temporarily in Australia as a student. This is apparent not just from the presence of the adverb, “temporarily” but also from the repetition of “genuine” or a derivative both in the chapeau and in cl 572.223(1)(a) and also the adjectival clause, “as a student” which governs “stay”, in the chapeau.
A lengthy extract from the judgment in Tandukar is set out at [27] above. There are significant similarities between the approach of the Tribunal in Tandukar and the approach of the Tribunal in the present case, and the gist of Derrington J’s reasoning in Tandukar is apposite in the present matter. I note in particular Derrington J’s comments:
(a)at [33] that the decision-maker was required to consider whether the applicant’s temporary presence in Australia was ‘as a student’, which included consideration of whether the applicant’s claim to be a student was genuine; and
(b)at [34] that the requirement to consider the equivalent of cl 573.223(1)(a)(iv), namely ‘any other relevant matter’, in assessing whether the applicant genuinely intended to stay in Australia temporarily would include whether the applicant was a genuine student.
I find in the present case that the Tribunal has not misapplied the relevant legal test in finding that the first applicant did not meet the criteria in cl 573.223(1)(a), and that it was permissible for the Tribunal to take into account its finding that the first applicant was not a genuine student in reaching that conclusion.
Ground 1 is not established.
Ground 2
First applicant’s submissions
Ground 2 as pleaded alleges that the Tribunal made a jurisdictional error by applying Ministerial Direction No 53 without having regard to the terms of cl 572.223. The first applicant’s submissions advanced the ground on a slightly different basis.
The first applicant submitted that Ministerial Direction No 53 is designed to provide written directions to persons assessing the genuine temporary entrant criterion including in cll 572.223(1)(a) and 573.223(1)(a). The first applicant submitted that it was not clear that the Tribunal applied Ministerial Direction No 53 at all. In particular, the first applicant submitted that the Tribunal failed to take into account:
(a)the first applicant’s immigration history, which was required to be considered by cl 573.223(1)(a)(ii) and Ministerial Direction No 53; and
(b)the remuneration that the applicant could expect to receive in the home country compared to Australia using the qualification gained in Australia, which was required to be considered under paragraph 12(c) of Ministerial Direction No 53.
Minister’s submissions
Mr Taylor submitted at the hearing that the Tribunal in applying Ministerial Direction No 53 was required to assess the first applicant’s circumstances as a whole and was not required to refer in its reasons to immaterial matters that were not the subject of evidence before the Tribunal, and that it was not required to make express findings about each of the factors in Ministerial Direction No 53. The Minister submitted that the Tribunal appropriately considered the matters raised by the first applicant in the present case.
Consideration
The Tribunal correctly acknowledged that it was required to take into account the matters raised in Ministerial Direction No 53 and that the matters in Ministerial Direction No 53 were not to be used as a checklist, but rather as a guide to weigh up an applicant’s circumstances as a whole.
In the present case, I am satisfied that the Tribunal has appropriately applied Ministerial Direction No 53 and had regard to the matters in that Direction. The Tribunal is not required to specifically refer in its reasons to each and every matter set out in Ministerial Direction No 53. As Derrington and Thawley JJ said in Kumar at [108]:
The primary judge was correct not to draw the inference that those or any paragraphs of Direction 53 were overlooked. There was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no submission had been made, and which were not the subject of evidence, less still to make an express finding about those factors.
Ministerial Direction No 53 provides the following guidance in relation to the consideration of an applicant’s immigration history:
THE APPLICANT’S IMMIGRATION HISTORY
13. An applicant’s immigration history refers both to their visa and travel history.
14.In considering the applicant’s immigration history, decision makers must have regard to the following factors:
a. Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which they were refused.
ii.if the applicant has previously applied for visas to other countries, whether they were refused a visa and the circumstances that led to visa refusal.
b. Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control.
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances.
iii.the amount of time the applicant has spent in Australia and whether the Student 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.
iv.if the applicant has travelled to countries other than Australia, whether they complied with the immigration laws of that country and the circumstances around any non-compliance.
Although the Tribunal did not include headings in its written reasons relating to the matters in Ministerial Direction No 53, and therefore did not include a heading signposting its consideration of the first applicant’s immigration history, it clearly considered the first applicant’s immigration history. The Tribunal relevantly considered:
(a)the length of the first applicant’s stay in Australia and the visas that the first applicant has held while in Australia, including student visas and a subclass 485 temporary graduate visa (see Tribunal’s reasons at [24], [25], [26], [32], [33], [34], [35], [36], [44], [47]);
(b)that the first applicant appeared to be applying for a student visa to maintain ongoing residence and that the first applicant had undertaken a series of short, inexpensive courses (see Tribunal’s reasons at [35], [36], [44]); and
(c)the unexplained gaps in the first applicant’s enrolment history, information that the applicant did not work in her nominated occupation when she held the subclass 485 visa, and information that previous visas held by the first applicant had been cancelled because the first applicant had been reported by education providers for unsatisfactory course progress (see Tribunal’s reasons at [24], [29], [41], [43]).
While these matters do not address every single issue raised in paragraph 14 of Ministerial Direction No 53, I am satisfied that the Tribunal adequately considered the first applicant’s immigration history. I infer that any issue raised in paragraph 14 of Ministerial Direction No 53 that was not specifically referred to in the Tribunal’s reasons was considered by the Tribunal to be immaterial to its decision. The first applicant has not identified to the Court any material submission or evidence about the first applicant’s immigration history that was provided to the Tribunal but not considered by the Tribunal.
Paragraph 12(c) of Ministerial Direction No 53 required the Tribunal, in considering the value of the course to the first applicant’s future, to have regard to the remuneration that the first applicant could expect to receive in her home country compared with Australia, using the qualification to be gained from the proposed course of study.
I am also not satisfied that the first applicant advanced before the Tribunal any evidence or submission in relation to her expected remuneration in Nepal. When I asked Mr Young at the hearing to identify if any submission had been made directly on this point, he did not direct me to any particular submission, and simply suggested that the question of remuneration was raised in issues dealt with in certain paragraphs of the Tribunal’s reasons, including in relation to why the first applicant chose to study in Australia rather than Nepal, and that the qualification would help her to get a good job at a hospital.
The first applicant advanced the following submission to the Tribunal in relation to the relevance of her intended course to her future career path:
The Diploma of Dental Technology that I have successfully completed also has given me some insight into the health industry and the opportunities in this sector. The health sector is growing in Nepal and there are many opportunities for innovation in that sector. After I returned back to Nepal I shall initially look for work in my related field. In rural locations of Nepal many people are suffering from health related problems due to lack of human resources and other factors. I believe that the education obtained here will give me competitive advantage to get a good job in hospitals, nursing homes or other health sectors.
I am also interested in social work and working for the community. I will feel proud of myself to get an opportunity to be able to contribute my knowledge and expertise for the needy people in a poor country like Nepal where there is always a need of well-trained human resources in the health sector. I believe that working for disadvantaged community in a remote location of my country will give me self-satisfaction and also highly contribute to the community as well as to my country Nepal. Also many NGO and INGOS are operating in public health sector in Nepal and having Australian qualification would give added advantage in finding a job.
I am satisfied that the Tribunal adequately considered this submission at [45] of its reasons, where it said:
In your statements you said your studies would be helpful in getting a good job in hospitals, nursing homes or other health sectors. You also said you are interested in social work and working for the community. You went on to say that many NGOs and I NGOs are operating in the public health sector in Nepal and having Australian qualifications will give you an added advantage in finding a job. You also told the Tribunal today you were talked into studying dental technology by education agent who told you that having completed the course should be able to get a good job in Nepal. You’ve completed that course but still have not gone home. The Tribunal does not believe you have a business plan guiding your studies.
In circumstances where the first applicant’s submissions did not refer to remuneration and the first applicant has not otherwise identified evidence before the Tribunal in relation to her expected remuneration, it was not necessary for the Tribunal to specifically refer in its reasons to the remuneration that the first applicant would expect to receive in Nepal compared with the remuneration she would expect to receive in Australia. I again infer that the Tribunal considered this factor and concluded that the factor was not material to its decision, and therefore did not refer to it in its reasons.
Ground 2 is not established.
Ground 3
Ground 3 was abandoned by the first applicant in her written submissions and was not addressed in oral submissions. The first applicant’s lawyers have indicated that they do not act for the second applicant. The second applicant did not participate in the hearing, and there was no application for the ground to be dismissed in circumstances where there was no applicant present at the hearing to address the ground. In these circumstances, the prudent course would be for me to address ground 3, and in this matter, the ground can be addressed briefly.
Ground 3 is a broad and unparticularised assertion that the Tribunal adopted a test of expectations of students in relation to holders of student visas without regard to the terms of cl 573.223. It is difficult to understand this ground in the absence of particulars. In circumstances where the ground was prepared at a time when the applicants were represented by a lawyer, abandoned by the first applicant, and not explained by the second applicant who did not participate in the hearing, the lack of particularisation is a sufficient reason alone to dismiss the ground.
In any event, the ground is not established, essentially for the reasons that are set out in the Minister’s written submissions.
Those parts of the Tribunal decision that might reflect some expectation of student visa holders include the Tribunal’s comments that:
(a)student visas are granted with expectation that the visa holder will remain enrolled and studying: at [42]; and
(b)it did not consider that the first applicant’s study history was that of a genuine student: at [37], having regard to the various short courses that the first applicant had studied, the lack of satisfactory explanation for the gaps in her study history, and her lack of academic progress.
I agree with the Minister’s submission that there is no indication in the Tribunal reasons that the Tribunal has adopted any incorrect test in this regard, and it was entirely open to the Tribunal to have regard to matters such as the first applicant’s study history and academic performance.
Ground 3 does not establish jurisdictional error and is dismissed.
CONCLUSION
In circumstances where I have found that there is no jurisdictional error in the Tribunal decision, it follows that the application to this Court is dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 July 2022
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