Tshering v Minister for Home Affairs
[2019] FCCA 2667
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TSHERING v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2667 |
| Catchwords: MIGRATION – Student (Temporary) (class TU) Student (subclass 500) – Student Visa – Bhutan – Genuine Temporary Entrant – whether the Tribunal erred in not inviting the Applicant to interview – whether the Tribunal ignored supporting documents – whether the Applicant did not receive correspondence – whether the Tribunal was required to consider all of Ministerial Direction Number 69 even when not relevant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss 359, 359C(1), 360(1), 360(3), 363A. Migration Regulations 1994 (Cth) r 500.212. |
| Cases cited: Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372. Singh v Minister for Immigration & Another [2018] FCCA 342. |
| Applicant: | PEMA TSHERING |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 419 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 12 September 2019 |
| Date of Last Submission: | 12 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| The Applicant appearing | In Person |
| Solicitors for the Applicant: |
| Counsel for the Respondents: | Ms G Ellis |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application filed 8 August 2018 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.
AND THE COURT NOTES:
Order amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules (2001).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 419 of 2018
| PEMA TSHERING |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 8 August 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) made on 4 July 2018. By that decision, the Tribunal affirmed a decision of the delegate (‘Delegate’) of the First Respondent not to grant the applicant a Student (Temporary) (class TU) Student (subclass 500) visa.
The matter was heard on 12 September 2019.
For the reasons which follow, I have concluded that the application should be dismissed.
Background
The applicant is a citizen of Bhutan and arrived in Australia on 12 July 2014. The applicant had been granted a Vocational Education Sector Student visa (Class TU, subclass 572) on 26 June 2014. On this visa, he completed a Diploma of Management between 4 August 2014 and 31 July 2015 and a Certificate III in Spoken and Written English between 3 August 2015 and 29 January 2016 at Stanley International College.
On 15 September 2016, he applied for a further student visa. The applicant intended to study Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and an Advanced Diploma of Hospitality. By that application, the applicant expressed that he had a ‘future plan’ of opening his own restaurant in Bhutan. He stated that he wished to abandon his involvement in the construction business which he had been operating for some time, and to change his career path to the hospitality sector. His plan was to open a European style restaurant in the Bhutanese town of Paro.
The Delegate’s decision
On 16 November 2016, the Delegate refused to grant the applicant a visa on the basis that he did not meet clause 500.212 of the Migration Regulations 1994 (Cth) (‘Regulations’). The Delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student because the Delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily.
Proceedings before the Tribunal
On 6 December 2016, the applicant applied to the Tribunal for review of the Delegate’s decision. That application to the Tribunal was accompanied by a copy of the Delegate’s decision together with a two-page statement.
On 13 April 2018, the applicant was invited to provide written information about his proposed courses of study and his entry and stay in Australia as a student. This invitation was sent to an email address of the applicant’s representative that had been provided in the application for review.
The invitation requested written information to be provided to the Tribunal by 27 April 2018. The invitation also noted that the applicant could request an extension of time within which to provide written information, subject to that request being received from the applicant before 27 April 2018.
The invitation also noted that, in the event that the written information was not received within the period allowed and no extension was granted, that the Tribunal may make a decision on the review application without taking further action to obtain information. The applicant was advised, in bold letters, that he may lose any entitlement he otherwise had under the Act to appear before the Tribunal to give reasons and present arguments in the event that he failed to comply with the invitation.
As at 27 April 2018, no information had been received by the Tribunal.
On 30 April 2018, the applicant’s representative provided the requested information to the Tribunal via email.
On 4 July 2018, the Tribunal affirmed the decision of the Delegate.
Tribunal’s decision
The Tribunal noted that the issue the Tribunal was to determine was whether the applicant met the genuine temporary entrant criterion under cl 500.212 of the Regulations.
The Tribunal’s decision is comprehensive. At [13] of the Tribunal’s decision record, the applicant’s employment and student history is set out. The Tribunal noted the applicant has now completed:
a)a Diploma of Management in July 2015;
b)a Certificate III in Spoken and Written English in January 2016;
c)a Certificate III and IV in Commercial Cookery in March and September 2017, respectively; and
d)a Diploma of Hospitality in March 2018.
The Tribunal noted that the applicant was currently enrolled in an Advanced Diploma of Hospitality.
The Tribunal set out the evidence provided by the applicant in relation to his work history in Bhutan.
The Tribunal referred to the Statement of Purpose provided to the Department of Immigration and Border Protection (‘the Department’) by the applicant on 10 September 2016 in relation to his purposes for study.
At [16] of the Tribunal’s decision record, the Tribunal noted that it had regard to Ministerial Direction No 69 (‘Direction No 69’). The Tribunal supplied Direction No 69 to the applicant on 13 April 2018.
At [17] of the Tribunal’s decision record, the Tribunal had regard to clause 9 of Direction No 69, which relates to the applicant’s circumstances in his home country.
At [18] through [21] of the Tribunal’s decision record, the Tribunal set out the applicant’s personal circumstances, noting that he was a separated middle-aged man with a daughter. The Tribunal noted that his daughter currently lives with his parents in Bhutan, that he communicated with her on an almost daily basis and that he had intended to visit Bhutan to spend time with her on a regular basis. The Tribunal noted, however, that the applicant did not explain why he had not returned to Bhutan other than one instance in 2014 to see his daughter and family.
At [20] of the Tribunal’s decision record, the Tribunal noted that the applicant had provided ‘only the most general comment[s] as to his intent to open a restaurant in Bhutan’. It was noted that the applicant had not provided details as to the style or how the development of the restaurant would be achieved.
At [22] of the Tribunal’s decision record, the Tribunal considered the applicant’s personal ties to Bhutan, including his family connections in Bhutan and his prospective employment in his own restaurant. The Tribunal was inclined to the view that the personal ties were minimal and did not act as a significant incentive to return to Bhutan.
At [23] to [25] of the Tribunal’s decision record, the Tribunal considered, per clause 11 of Direction No 69, the applicant’s personal circumstances in Australia. The Tribunal noted that the applicant had been employed in Australia earning income sufficient to meet his living costs. The Tribunal was inclined to the view that the applicant’s ties to Australia presented as a strong incentive to remain.
At [26] to [29] of the Tribunal’s decision record, the Tribunal considered, per clause 12 of Direction No 69, the value of the course to the applicant’s future. The Tribunal was not satisfied that the applicant was seeking to study a course that will assist him to obtain employment or improve his employment prospects in his home country.
The Tribunal considered, per clauses 13 and 14 of Direction No 69 at [30] to [32] of the Tribunal’s decision record, the applicant’s immigration history. At [31] of the Tribunal’s decision record, the Tribunal stated that it was not aware of information that might suggest the applicant had not adhered to his student visa or relevant conditions. The Tribunal was concerned, however, that ‘the applicant’s ongoing residence and significant changes in his career pathway raises concerns the applicant is using the student visa program to maintain ongoing residence in Australia’.[1]
[1] Tribunal’s decision record, 4 July 2018, [31].
At [32] of the Tribunal’s decision record, the Tribunal affirmed the Delegate’s decision, stating:
the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Grounds of review
The applicant filed an application on 8 August 2018, raising four grounds of review (and quoted exactly):
1. I was not given an opportunity for interview.
2. I have been a genuine student and have complied with visa conditions.
3. The Tribunal ignored all the supporting documents such as attendance and completion certificates.
4. I did not receive correspondence letter which is mentioned in the statement of decision number 9,10 for update the evidence
Prior to the commencement of the hearing, there was some inquiry made as to whether an interpreter from the Bhutanese language to English was available to assist the applicant. The applicant had not indicated in his application that he required an interpreter. However, the interpreter was located via telephone but the applicant declined to use the services of the interpreter because apparently the interpreter spoke a different dialect, or a dialect that the applicant was unfamiliar with.
In any case, the applicant indicated that he was happy to proceed without an interpreter. I also note that he has filed two affidavits in English (being affidavits sworn 20 November 2018 and 19 August 2019) and his spoken English was clear and comprehensible. From his exchanges with the bench, I did not get any indication that he did not understand either the process of the hearing or questions that were being directed to him.
Consideration
Ground 1 – Opportunity for an interview
In my view there is no error in the way that the Tribunal conducted the review.
The Tribunal wrote, under section 359 of the Act, to the applicant to the address that he provided in his application with an invitation to give information.
Notwithstanding the applicant failed to provide the information within the time specified, the Tribunal at [13] of the decision record considered the material that had been filed by him through his representative.
Otherwise, the applicant was not entitled to appear before the Tribunal by operation of section 363 of the Act because s 359C(1) of the Act applied to the applicant. The Tribunal did not have the power to permit the applicant to appear before the Tribunal by reason of the operation of 363A of the Act.
There is no jurisdictional error is revealed under this ground.
Ground 2 – Genuine Student and compliance with visa conditions
This ground seeks to raise a disagreement with the Tribunal’s decision. The Court is not entitled to engage in merits review of the decision or substitute its own decision in place of the Tribunals.
The findings that the Tribunal made in relation to whether the applicant was a genuine temporary student were open to it on the evidence. The Tribunal set out the applicant’s grounds clearly and at length. The Tribunal considered those grounds and gave its reasons in a detailed, comprehensive way. There is no error in this ground.
Ground 3 – whether the Tribunal ignored supporting documents in relation to his attendance and completion certificates of the courses that he had attended.
The Tribunal, at [31] of the decision record, noted that it was not aware of information that might suggest the applicant had not adhered to his student visa or relevant conditions attached to his student visa, including attendance at the courses that he was enrolled in. The applicant attached certificates of completion to his affidavit sworn 19 August 2019 in relation to a Diploma of Management, Certificate III in Spoken and Written English. Those documents had already been supplied and were before the Tribunal.
His Certificate III in Commercial Cookery (issued 30 March 2017), Certificate IV in Commercial Cookery (issued 15 March 2018) post-date the Tribunal’s decision and are therefore irrelevant. Notwithstanding its irrelevance, the Tribunal nonetheless referred to the applicant’s attendance at and completion of these courses. There is no failure on the part of the Tribunal to take into account this material.
Ground 4 – failure to receive correspondence
The applicant seeks to give an explanation as to why he did not provide written information requested in the Tribunal’s letter of 13 April 2018 by the required date. The reasons that the applicant failed to comply with the request are not relevant to the operation of ss 359, 359C and 360 of the Act. The Tribunal acted in accordance with the provisions of the Act in relation to the way it conducted the application as discussed above. Furthermore, the Tribunal had no power to permit the applicant to appear.
As noted in the submissions of the First Respondent, the suggestion that the applicant’s representative had not been provided with a copy of the letter of request of 13 April 2018 is difficult to accept given that an email sent from the applicant’s representative on 30 April 2018 stated:
Find attached the information requested from my client for the member’s consideration.
That comment must be a reference to the Tribunal’s letter of 13 April 2018 requesting information. No jurisdictional error is apparent in relation to ground 4.
Applicant’s affidavits
I note that the matters raised in the applicant’s affidavits of 20 November 2018 and 19 August 2019 is, effectively, an attempt by the applicant to respond to issues raised by the Tribunal.
By his affidavit of 20 November 2018, the applicant requests that he may submit further documents in order to substantiate his visa application. He further requests ‘your good office to kindly reconsider my application in light of the following justifications from my side’.
Whilst it is perfectly understandable that the applicant would seek to do this, the Court cannot engage in merits review or accept this fresh material as a basis of overturning the Tribunal’s decision.
The Matter of Singh
As a model litigant, the First Respondent raised in its written submissions the decision of Judge Riley in Singh v Minister for Immigration & Another [2018] FCCA 342 (‘Singh’). In Singh, her Honour found that the Tribunal had committed jurisdictional error by failing to consider each and every factor outlined in direction number 53 (previously Direction No 69) in determining whether the applicant was a genuine temporary entrant.
In that regard, I refer to the decision of Judge A. Kelly in Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 at [49] and [51]. In that decision his Honour reviewed the authorities in relation to the proper approach to consideration of the guidelines. At [51] he stated:
The use of guidelines in the exercise of statutory discretionary powers is not uncommon. The trend of reasoning in the authorities respecting Direction 53 and to which my attention was drawn confirms that the use of those guidelines requires that they be addressed insofar as they are relevant to the particular facts of the instant application. By extension, those guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines
I also refer to the decision of Judge Barnes in Khan v Minister for Immigration & Another [2019] FCCA 565 at [35] where her Honour took a similar approach.
In my view there is no error disclosed in the way that the Tribunal used Direction No 69 in considering the matters raised by the applicant and I adopt the approach endorsed by Judges Barnes and Kelly.
Conclusions
For the reasons above, I have concluded that the application must be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 20 September 2019
Corrections
The following changes have been made:
The case name has been changed from PEMA V MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2667 to TSHERING V MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2667.
The case name in the footnote has been changed from Pema v Minister for Home Affairs & Anor [2019] FCCA 2667 to Tshering v Minister for Home Affairs & Anor [2019] FCCA 2667.
The name of the Applicant has been changed from Tshering Pema to Pema Tshering.
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