Thapa v Minister for Home Affairs
[2019] FCCA 2601
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THAPA v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2601 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Carrascalao v Minister for Immigration (2017) 252 FCR 352 WZAVW v Minister for Immigration [2016] FCA 760 |
| Applicant: | ANUJ THAPA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 247 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms K Evans of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 247 of 2019
| ANUJ THAPA |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant, Mr Thapa, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 January 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Thapa a temporary student visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 9 September 2019.
Mr Thapa, a citizen Nepal, arrived in Australia on 27 January 2014 as the holder of a higher education sector (subclass 573) visa, to undertake a Bachelor of Information Technology.[1]
[1] Court Book (CB) 35
On 13 March 2017, Mr Thapa applied for a student (temporary) (subclass 500) visa (visa) on the basis that he intended to study a Bachelor of Professional Accounting.[2]
[2] CB 1-15
On 8 May 2017, the delegate refused to grant the visa on the basis that Mr Thapa did not meet clause 500.212 of the Migration Regulations 1994 (Cth) (Regulations).[3] The delegate was not satisfied that Mr Thapa intended genuinely to remain in Australia temporarily.[4]
[3] CB 32-36
[4] CB 32-36
On 25 May 2017, Mr Thapa applied for review of the delegate’s decision in the Tribunal.[5]
[5] CB 37-38
On 14 August 2018 and 29 August 2018, the Tribunal invited Mr Thapa to provide further information including a copy of his Confirmation of Enrolment and a written statement addressing the issue of whether he was a genuine applicant for entry and stay in Australia, attaching a copy of Direction 69.[6]
[6] CB 49-56, 60-62
On 18 September 2018, Mr Thapa, through his migration agent, provided written submissions and a number of supporting documents to the Tribunal.[7] The written submissions indicated that Mr Thapa had enrolled in a Diploma of Hospitality Management course and a Diploma of Business, as he had aspirations of opening a café in Nepal.[8] The written submissions also stated that Mr Thapa’s enrolment in information technology, business and accounting courses were a result of his “uninformed decisions influenced by the agents” and he never enjoyed these courses and had to withdraw from the courses.[9]
[7] CB 68-70
[8] CB 79
[9] CB 79
On 20 September 2018, Mr Thapa appeared before the Tribunal to give evidence and present arguments.[10] Mr Thapa gave evidence that he had never wanted to study a Bachelor of Information Technology, as he actually wished to study cooking, but applied for the course as he was told that he would have a better chance of obtaining a student visa. He indicated that he ceased studying the course in April 2014.[11] Mr Thapa also gave evidence that he had ceased studying the Bachelor of Professional Accounting two months after it had commenced in December 2016.[12]
[10] CB 133
[11] CB 142, [15]-[16]
[12] CB 143, [19]
On 14 January 2019, the Tribunal affirmed the decision under review.[13]
[13] CB 140
Tribunal’s decision
The Tribunal identified the issue to be determined was whether Mr Thapa was a genuine applicant for stay as a student, having regard to the specified factors in Direction 69.[14]
[14] CB 144, [25]
The Tribunal accepted that Mr Thapa did not have any military service commitments or concerns as to civil unrest in Nepal which would act as a disincentive to return there.[15]
[15] CB 145, [28]
The Tribunal acknowledged that Mr Thapa did not have any relatives in Australia and had family ties in his home country, some of whom had property and financial assets in Nepal.[16] The Tribunal accepted that Mr Thapa had stronger ties to Nepal than to Australia. However, the Tribunal considered that the nature of Mr Thapa’s relationship with his family in Nepal had provided him with an incentive to maintain his residency in Australia, on the basis that his family had pressured him to study accounting, which he had no interest in doing. The Tribunal accepted that Mr Thapa did not intend to complete studies, or seek a career in his country, in either accountancy or information technology.[17]
[16] CB 145, [30]
[17] CB 145, [30]
The Tribunal considered that the fact that Mr Thapa had not returned to Nepal since his arrival in Australia and his only overseas travel was a trip to China did not support his contention that he had the sort of ties to Nepal which provided a strong incentive to return.[18] His absence of any travel to Nepal also reinforced the Tribunal’s view that the pressure from his family to follow a particular study path which he was disinterested in provided an incentive to remain in Australia.[19]
[18] CB 145, [31]
[19] CB 145, [31]
The Tribunal gave consideration to Mr Thapa’s claims that his study choices could be explained by a combination of poor advice and parental pressure.[20] However, the Tribunal was not persuaded that this explanation resolved its concern arising out of Mr Thapa’s complicity in disingenuous behaviour by (i) enrolling in courses for an information technology degree with no intention of genuinely engaging in the course in order to increase the likelihood of being granted a student visa, (ii) enrolling in a Bachelor of Business degree, which he did not intend to commence, in order to appear as though he was continuing his study at a higher education sector level and (iii) ceasing his study of the Bachelor of Professional Accounting two months after the course commenced. The Tribunal found that Mr Thapa’s decision making in relation to his course enrolments was not indicative of a genuine student.[21]
[20] CB 145, [32]
[21] CB 145, [32]
The Tribunal considered Mr Thapa’s claim that he had a long term interest in the hospitality field and wanted to open a café or restaurant in Nepal.[22] However, the Tribunal was not satisfied that this explained why Mr Thapa had failed to enrol in the Diploma of Hospitality Management and Diploma of Business course until after the Tribunal had sent him a hearing invitation, resulting in a gap in study of almost 22 months. The Tribunal considered that Mr Thapa’s claim that it would be a waste of time and money to study in the interim period was of further concern. The Tribunal found that Mr Thapa’s decision making was not indicative of a student with a genuine intention to remain in Australia temporarily.[23]
[22] CB 146, [33]
[23] CB 146, [33]
The Tribunal considered that Mr Thapa had not provided any evidence to indicate that he had undertaken any research in relation to opening a restaurant or café in Nepal and accordingly, the Tribunal was not convinced that any such aspirational goal provided an incentive to return there.[24]
[24] CB 146, [34]
The Tribunal rejected Mr Thapa’s submission that he had no history of breaching his visa conditions, given that he had not undertaken study or maintained enrolment in higher education sector courses, which was a condition of his previous student (subclass 573) visa.[25]
[25] CB 146, [35]
On the available evidence, the Tribunal did not accept that Mr Thapa was undertaking study for the reasons he claimed, but rather was using it as a pathway to maintain residence in Australia.[26] The Tribunal was not satisfied that Mr Thapa genuinely intended to stay in Australia temporarily, and concluded that he did not meet clause 500.212 and therefore did not meet the criteria for the visa.[27]
[26] CB 146, [36]
[27] CB 146, [37]-[40]
The present proceedings
These proceedings began with a show cause application filed 7 February 2019. Mr Thapa continues to rely upon that application. There are nine grounds in it:
1.The tribunal's decision has breached the rules of natural justice occurred in connection with the making of the decision and that procedures that were required by law to be observed in connection with the making of the decision were not observed.
2.The tribunal has failed to take a relevant consideration into account in the exercise of a power.
3.The tribunal's decision appears to be an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
4.The tribunal's decision is unreasonable and irrational.
5.In Paragraph 21 the Tribunal mentions that it invited the applicant to comment on the concern the gaps in his studies and his failure to complete courses or maintain study at a higher education sector level gives rise to the concern about his lack of academic progress and whether he is a genuine applicant for stay in Australia as a student. The Tribunal further accepts that the applicant did respond. However, the Tribunal has failed to consider the applicant's response.
6.In paragraph 27, the Tribunal mentions that it has considered the written submission from the applicant's representative. The Tribunal agrees the genuine temporary entrant criteria should be assessed and applied to the applicant's circumstances by considering the context of the case and the entire surrounding circumstances of the applicant. However, the Tribunal has failed to explain how it reached its conclusion, on what basis it considered the applicant's circumstances and claims does not satisfy the genuine temporary entrant criterion
7.In paragraph 30, the Tribunal accepts that the applicant has stronger ties to his home country Nepal and then he does to Australia but has failed to consider those facts in reaching its decision. Ties to home country is one of the key factors to be considered when applying the Ministerial Direction to assess the genuine temporary criterion. The tribunal considers that the fact the applicant has maintain his temporary residency in Australia since 2014 is due to the nature of those ties and provides no basis or explanation of that basis. The tribunal has failed to apply the genuine temporary entrant criterion lawfully.
8.In paragraph 33, the Tribunal mentions that the applicant should have continued to enrol in the hospitality and business course while his review matter was with the Tribunal. The Tribunal has failed to accept that there is no legally mandatory requirement for the applicant to continue to maintain his enrolment in a course while holding a bridging visa. Bridging visa does not have a mandatory condition to continue his course or maintain his enrolment. Thus, that is a legal error from the Tribunal that it has failed to consider.
9.The tribunal has made a jurisdictional error in interpreting and applying the Migration Regulations.
The grounds are also referred to in an accompanying affidavit which I received as a submission. I have before me as evidence the court book filed on 28 March 2019.
I invited oral submissions from Mr Thapa this afternoon. He appeared somewhat nervous. He expressed disagreement with the Tribunal decision, but was not able to articulate any legal propositions, either based on the grounds of review or otherwise.
In his submissions in reply, Mr Thapa sought an adjournment in order to obtain legal advice or representation. As I told him, there would be some point in such request if some viable legal argument could be identified. However, in the absence of such an argument, there would be no point in further delay.
In my view, the decision of the Tribunal in this case is free from jurisdictional error. The Tribunal considered the various matters raised by Mr Thapa and complied with its code of procedure.
The grounds of review advanced by Mr Thapa are comprehensively dealt with in the Minister’s written submissions. I agree with those submissions.
Ground 1
By Ground 1, Mr Thapa contends that the Tribunal breached the rules of natural justice and failed to observe “procedures that were required by law”. This ground is not particularised and fails to identify how the Tribunal is said to have erred.
On the basis of the evidence before the Court, no denial of procedural fairness is apparent. In particular, there is no basis for any contention that the Tribunal failed to comply with the requirements of the natural justice hearing rule, as exhaustively stated in Division 5 of Part 5 of the Migration Act 1958 (Cth) (Migration Act).[28]
[28] Section 357A(1)
Mr Thapa was validly invited to a hearing in accordance with s.360 and s.360A of the Migration Act.[29] Mr Thapa’s request, through his migration agent, for an extension and postponement of the hearing was granted by the Tribunal,[30] and Mr Thapa subsequently appeared before the Tribunal to present his arguments and evidence.[31]
[29] CB 49
[30] CB 60
[31] CB 133
Further, the Tribunal was correct to find that no obligation under s.359A or s.359AA of the Migration Act arose in respect of the PRISMS information in circumstances where the information did not in its terms represent a rejection, denial or undermining of Mr Thapa’s claims.[32] The PRISMS records were consistent with the study history presented by Mr Thapa both in his curriculum vitae and in his oral evidence at the hearing and accordingly, this information was neutral to his claims.
[32] CB 142 [14]; SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26 at [17]
Moreover, the Tribunal provided Mr Thapa with a copy of his PRISMS records at the hearing to allow him the opportunity to consider the information,[33] and Mr Thapa was plainly on notice of the determinative issues on the review from: the delegate’s decision; the Tribunal’s invitations to provide further information; and the Tribunal’s questions at the hearing.[34] Ground 1 fails to raise an arguable case for the relief claimed.
[33] CB 142 [14]
[34] CB 32-36, 49-56, 60-62, 143 [21]; SZBEL v Minister for Immigration (2006) 228 CLR 152 at [37]
Grounds 2, 5 and 7
Grounds 2, 5 and 7 can be dealt with together. By these grounds, Mr Thapa contends that the Tribunal failed to consider a relevant consideration. Ground 2 fails to identify what relevant consideration the Tribunal is said to have overlooked.
Ground 5 contends that the Tribunal asked Mr Thapa to comment on gaps in his studies and his failure to complete courses, but failed to consider Mr Thapa’s response. The Tribunal acknowledged Mr Thapa’s response that he had acted on poor advice and had enrolled in courses in which he did not have an interest.[35] However, the Tribunal was not persuaded that this resolved its concern that Mr Thapa had been complicit in enrolling in courses disingenuously to improve his chances of acquiring and maintaining his student visa.[36] The Tribunal concluded that Mr Thapa’s decision making in relation to these course enrolments was not indicative of a genuine student.[37]
[35] CB 143, [21], CB 145, [32]
[36] CB 145, [32]
[37] CB 145, [32]
Ground 7 contends that while the Tribunal accepted that Mr Thapa had stronger ties to Nepal than to Australia, it failed to consider that fact in making its decision. The Tribunal accepted that Mr Thapa had stronger ties to Nepal than Australia but considered that Mr Thapa faced pressure from his family to undertake study he was disinterested in, which gave him an incentive to remain in Australia.[38] That finding was reasonably open to the Tribunal on the basis of Mr Thapa’s evidence given at the hearing that his family was not happy with his decision to study Commercial Cookery and that his father had pressured him to enrol in an accounting degree.[39]
[38] CB 145, [30]
[39] CB 142-143, [16], [19]
Properly understood, Grounds 2, 5 and 7 disagree with the Tribunal’s conclusions that were open to it for the reasons it gave. In so doing, they invite the Court to engage in impermissible merits review, and fail to raise an arguable case for the relief claimed.
Grounds 3 and 4
By Grounds 3 and 4, Mr Thapa makes a bald assertion that the Tribunal’s decision was unreasonable and irrational. Without particularisation, these grounds are meaningless and I reject them.[40]
[40] WZAVW v Minister for Immigration [2016] FCA 760 at [35]
Ground 6
Ground 6 is a complaint that the Tribunal failed to explain how it reached its conclusion that Mr Thapa did not meet the temporary entrant criterion. Having considered all of the available evidence, the Tribunal did not accept that Mr Thapa was undertaking study for the reasons he claimed, but rather was using it as a pathway to maintain residence in Australia. In circumstances where the Tribunal engaged in an active intellectual process with the issues and the evidence before it, and gave clear and logical reasons for its conclusions, this ground cannot succeed.[41]
[41] Singh v Minister for Home Affairs [2019] FCAFC 3 at [30], citing Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [45].
Ground 8
Ground 8 contends that the Tribunal mentioned that Mr Thapa should have continued studying whilst his matter was being reviewed and that in doing so, failed to accept that there was no legally mandatory requirement to continue his enrolment whilst holding a bridging visa. This ground is misconceived.
First, the Tribunal considered Mr Thapa’s claim that his migration agent had advised him that he was not required to study whilst on a bridging visa.[42]
[42] CB 143 [20]
Secondly, the Tribunal did not state that Mr Thapa should have maintained his enrolment; rather, it considered that Mr Thapa had failed to enrol in the hospitality and business courses until after the hearing invitation had been received, resulting in a 22 month study gap. Given that Mr Thapa’s stated primary motivation for remaining in Australia was to study hospitality, the Tribunal found Mr Thapa’s delay in enrolling was indicative that he was not a genuine temporary entrant.[43] The Tribunal also found Mr Thapa’s claim that it would have been a waste of time and money to continue his enrolment was not indicative of a genuine student.[44] These findings were open to the Tribunal on the material before it and for the reasons it gave. Ground 8 fails to raise an arguable case for the relief claimed.
[43] CB 146, [33]
[44] CB 146, [33]
Ground 9
Ground 9 is an unparticularised assertion that the Tribunal made a jurisdictional error in applying the Regulations. Again, without particulars, this complaint is meaningless and fails to establish an arguable case.
Conclusion
I conclude that Mr Thapa is unable to advance an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Thapa did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 September 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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