Tiwari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FCA 919
•15 August 2024
FEDERAL COURT OF AUSTRALIA
Tiwari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 919
Appeal from: Tiwari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 940 File number(s): NSD 471 of 2021 Judgment of: RAPER J Date of judgment: 15 August 2024 Catchwords: MIGRATION – application to extend time and leave to appeal a decision of the (former) Federal Circuit Court of Australia that the proceeding be dismissed because of failure to show cause – where the applicant had made an application for a Student Temporary Class 2U – Higher Education Sector (Subclass 573) visa – where the Tribunal had not been satisfied that the applicant was enrolled in a course of study as required under cl 500.211(a) of sch 2 of the Migration Regulations 1994 (Cth) – where the FCCA dismissed the application on the basis of the failure to show cause – where the applicant claimed that there was a failure by the Tribunal and the FCCA to consider the circumstances in which he was no longer enrolled in a course of study – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act1958 (Cth) s 476
Federal Circuit Court 2001 Rules (Cth) r 44.12(2)
Federal Court Rules 2011 (Cth) rr 35.13(a), 35.14(2)
Migration Regulations 1994 (Cth) Sch 2 cll 500.2, cl 500.211, 500.211(a), 500.212
Cases cited: Tiwari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 940 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 24 Date of hearing: 7 August 2024 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr R Terrell of the Australian Government Solicitor Counsel for the Second Respondent The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 471 of 2021 BETWEEN: BIBEK TIWARI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MUTLTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
RAPER J
DATE OF ORDER:
15 AUGUST 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant is ordered to pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RAPER J:
By application dated 21 May 2021, the applicant, Mr Bibek Tiwari, seeks an extension of time to apply for leave to appeal and to appeal from the judgment of Judge Street of the (then) Federal Circuit Court of Australia (PJ or primary judgment): Tiwari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 940. The primary judge dismissed Mr Tiwari’s application for judicial review of the Administrative Appeals Tribunal’s decision to affirm the delegate’s refusal to grant Mr Tiwari a Student (Temporary) (Class TU) (subclass 500) visa at a show cause hearing, on the basis that he had not articulated an arguable case for the relief claimed: at PJ[7].
Mr Tiwari is a citizen of Nepal, born 1982 and has largely resided in Australia since 2008 by the grant of various student visas.
When considering whether to grant an applicant a student visa of the kind Mr Tiwari sought, the Minister or his delegate or the Tribunal on review, is required to be satisfied that Mr Tiwari fulfils the criteria under cl 500.2 of Sch 2 of the Migration Regulations 1994 (Cth). Relevantly, for the purpose of this application, amongst other things, the criteria includes whether the applicant is enrolled in a current course of study (cl 500.211) (the Tribunal was not so satisfied and refused Mr Tiwari’s application for judicial review on this basis). Nonetheless, even if the person is enrolled in a current course of study, the Minister or his delegate or the Tribunal must also be satisfied that the applicant is a “genuine applicant” (cl 500.212) (the Minister’s delegate was not so satisfied and had refused Mr Tiwari’s application on 15 March 2018 on this basis).
This application concerns whether (despite Mr Tiwari not disputing that at time he sought judicial review of the delegate’s decision in the Tribunal, that he was not enrolled in a course of study as required under the Regulations) the Tribunal, and subsequently the primary judge, erred in failing to take into account the circumstances which led to him not being enrolled in a course, which Mr Tiwari says included medical or psychological reasons.
For the following reasons, Mr Tiwari’s application must fail. As found by the Tribunal, and reiterated by the primary judge, Mr Tiwari could only be granted a visa if he satisfied the mandatory criteria under the Regulations, which included that he was enrolled in a course of study. There was no ability for account to be taken of what could loosely be described as compassionate reasons or the surrounding circumstances, when this essential criterion was not satisfied.
The Tribunal’s decision
The Tribunal’s reasons record, and Mr Tiwari does not dispute, that he attended the 19 May 2020 hearing and gave evidence and presented arguments: at T[4].
The reasons also record that, on 4 May 2020 (approximately two weeks before the hearing), Mr Tiwari was sent a written invitation to appear and as part of that invitation, a request was made that he provide evidence of enrolment in a full-time registered course to the Tribunal at least seven days before the hearing: T[11]. No such evidence was provided. The Tribunal also records that Mr Tiwari confirmed in sworn evidence that he was not currently enrolled in an approved course of study: T[13]. The Tribunal having no evidence before it of Mr Tiwari being enrolled in a course of study, found the visa requirements, stipulated in the Regulations, had not been met, and affirmed the delegate’s decision.
The Federal Circuit Court’s decision
On 10 June 2020, Mr Tiwari applied for judicial review under s 476 of the Migration Act1958 (Cth) on the basis of the following three grounds:
1. Clause 500.211 doesn’t apply as I am a genuine temporary entrant
2. Clause 500.212 is not applicable as I am primary applicant
3. AAT neglected psychological condition in regards to making a decision
On 5 May 2021, a show cause hearing was held before the primary judge under the then r 44.12(2) of the Federal Circuit Court 2001 Rules (Cth), which provided:
44.12 Show cause hearing
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.
Upon my review of the transcript, it is evident that the primary judge explained to Mr Tiwari the nature of the show cause hearing, what Mr Tiwari was required to establish and gave him opportunities to make submissions as to why he had an arguable case for judicial review of the Tribunal’s decision. Mr Tiwari made submissions, of a similar nature, to those raised on appeal, as to the reasons why at the time of the Tribunal’s decision he was not enrolled in a course of study, including his familial circumstances.
The primary judge dismissed the application and gave ex tempore reasons dismissing the application on the basis that it was not satisfied that Mr Tiwari had raised an arguable case, noting that the applicant was on notice before the Tribunal that he needed to be enrolled in a course and had not provided evidence of the same.
The application before this Court
Given the primary judgment is an interlocutory judgment, leave is required for the applicant to appeal from that decision: Federal Court of Australia Act 1976 (Cth) s 24(1A). In addition, an application to extend time to seek leave to appeal is necessary in this case. This is because any application for leave to appeal the decision below must be filed within 14 days after the order was made (Federal Court Rules 2011 (Cth) rr 35.13(a), 35.14(2)) and Mr Tiwari’s application was made six days out of time. Mr Tiwari sought an extension of time, it appeared, by relying on the strength of his appeal grounds, claiming that the “medical reason were (sic) overlooked” and “psychological reasons were not given preferences”. Whilst the Minister says nothing about the delay, the Minister opposes the application on the basis that the primary judge’s decision is not attended with sufficient doubt (and therefore the applicant’s proposed appeal grounds are without merit).
Mr Tiwari sought to support his application for leave on the basis of his draft Notice of Appeal which contained two proposed grounds, which are extracted as follows:
1. Psychological reasons were not given preferences.
2. I wasn’t given permission to put my opinions.
It was Mr Tiwari's submission at hearing that he has continued his study in the 16 years he has been in Australia, including having completed an advanced diploma and a bachelor's degree. It is his wish to undertake a master’s degree. It was his submission that, at the time of the Tribunal hearing, his wife had left, and he could not concentrate on his studies. Further, he said he was very confused by Australian immigration processes. However, these submissions provide no answer to the fatal problem for Mr Tiwari, namely, he could not satisfy the Tribunal of one of the essential criteria in order for him to be granted a visa, being current enrolment in a course of study.
For the reasons which follow, Mr Tiwari’s application must be refused, his proposed grounds are without merit.
Proposed ground one – psychological reasons not given preference
By Mr Tiwari’s first proposed ground of appeal, it appears he contends that there was a failure of the Tribunal or the primary judge to consider his “psychological reasons”. At hearing, Mr Tiwari clarified that the proposed ground is raised with respect to the decisions of both the Tribunal and the primary judge.
However, the proposed ground does not identify any psychological evidence which was overlooked, either in the conduct of the Tribunal hearing or in the hearing before the primary judge.
The only evidence of a medical nature that was put to the Tribunal was a medical certificate dated 17 February 2020 that was proffered by Mr Tiwari to the Tribunal, which said the applicant was unwell from 16 February to 17 February 2020 (17 February 2020 being when the application was first listed before the Tribunal). The Tribunal had regard to the medical certificate in deciding to reinstate the application for review and to set it down for hearing on 19 May 2020.
Mr Tiwari was asked at the hearing what was meant by “psychological reasons ” referred to in his application. Mr Tiwari confirmed that he was making reference to why he says he was not enrolled in a course. From this, I understood that Mr Tiwari’s complaint is that he believes he should have been granted a student visa because there were attenuating circumstances for why he was not enrolled in a course of study at the time of the Tribunal hearing, namely, the fact of his wife leaving, his inability to concentrate and his financial situation.
Proposed ground two – the alleged absence of permission to put his opinions
With respect to the second proposed ground, being the alleged absence of “permission” to put his opinions, it was unclear as to whether this ground was directed to the conducting of the Tribunal as well as the hearing before the primary judge. Mr Tiwari submitted that he felt that his opinions were not understood. By this, it seemed again, that Mr Tiwari was claiming that account was not being taken of the circumstances which led to, or surrounded him, not being enrolled in a course of study.
It is apparent from the foregoing that, at the Tribunal hearing, Mr Tiwari attended and made arguments and gave evidence. Whilst his application was not successful, there is no basis to conclude that he was deprived of the ability or opportunity to make arguments.
Furthermore, a review of the transcript from the FCCA hearing reveals the following. Mr Tiwari was given an opportunity by the Court to provide an amended application, written submissions and any evidence, but chose not to do so: at PJ[3]. Whilst the hearing was during the pandemic and conducted on Microsoft Teams, the primary judge explained the nature of the proceedings, and asked Mr Tiwari numerous questions, to which he answered. Mr Tiwari was given numerous opportunities to make his submissions. There is no basis upon which it could be asserted that he was deprived of the ability to give his opinions or put arguments.
With respect to both proposed grounds, as stated above, an essential requirement for the grant of the visa was that the applicant was enrolled in an approved course of study: cl 500.211(a) of Sch 2 to the Regulations. The Tribunal was correct to find that the applicant did not satisfy the criteria in cl 500.211(a), noting Mr Tiwari expressly confirmed this in his evidence before the Tribunal: at T[13]. I accept the submission of the Minister that the Tribunal had no discretion to waive this requirement on the basis of any “psychological reasons” or personal predicament. For the same reason, there was no such discretion available to the primary judge. Accordingly, proposed grounds one and two are without merit and provide the basis for why Mr Tiwari’s application is refused.
Conclusion
For these reasons, the applicant’s application must be dismissed and he will be required to pay the first respondent’s costs on an agreed or assessed basis.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper . Associate:
Dated: 15 August 2024
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