Joshi v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT REVISED FROM TRANSCRIPT 1 In February 2013, a delegate of the Minister for Immigration and Border Protection (the Minister) decided to refuse to grant Ms Sumitra Joshi a student visa on the basis that she did not meet one of the criteria for the grant of the visa. This also meant that the visa application by Ms Joshi's husband, Mr Raj Kumar Shrestha, which was dependent on Ms Joshi's application, was also refused. Ms Joshi and Mr Shrestha sought a review of the refusal decision in the Migration Review Tribunal (the Tribunal). That application failed. They then challenged the Tribunal's decision in judicial review proceedings in the Federal Circuit Court. The application was dismissed on an interlocutory basis because the primary judge found that there was no arguable case for relief. Ms Joshi and Mr Shrestha now apply for leave to appeal from the judgment of the Federal Circuit Court.

the Tribunal proceedings and decision 2 A criterion for the grant of the student visa that Ms Joshi applied for was that the Minister was satisfied that she was "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": clause 572.223(1)(a) of the Migration Regulations 1994 (Cth) (the Regulations). It would appear that the Tribunal entertained some concerns about whether Ms Joshi met that criterion. Those concerns appear to largely have emanated from the history of courses that Ms Joshi had enrolled in as a student. Those courses had provided the basis for previous student visas applied for by, and granted to, Ms Joshi. Prior to the Tribunal's hearing of the review application, the Tribunal wrote to Ms Joshi and Mr Shrestha pursuant to s 359A of the Migration Act 1958 (Cth) (the Act). 3 Section 359A(1) of the Act provides as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. 4 The material part of the Tribunal's letter was a follows: I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Student (Temporary)(Class TU) visas. In conducting its review, the tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review. Please note, however, that the tribunal has not made up its mind about the information. The particulars of the information are: Electronic (PRISMS) records before the tribunal indicate that you are currently enrolled in a course of study. The tribunal notes that you provided the Department of Immigration and Border Protection with two Confirmation of Enrolment (CoE) documents, for Certificate IV in Hospitality (Commercial Cookery) from 12 November 2012 to 27 June 2014 and Diploma of Hospitality, from 21 July to 26 September 2014. These records indicate: You were enrolled in a number of courses in the field of Hairdressing and Salon Management for over four years after your arrival in Australia on 1 January 2009. However, your two current enrolments are in an unrelated field. Since your arrival in Australia you have finished a number of inexpensive and short courses, only one of which was for more than six months, at the Vocational level. Your current CoEs are for further study, for two years, at the same level. You applied for permanent Skilled Migration on the basis of your qualifications in Hairdressing, on the nomination of SNJ Hair Styling Pty Ltd. This application was refused by the Department on 21 June 2012. You have not explained why you decided to change to courses in Hospitality or why, you would have done so, having sought permanent residency in Australia on the basis of a career in the field of Hairdressing. You have submitted a work reference from Vatan restaurant stating that you were employed as a kitchen hand but this provides little information about your duties or your tenure in this position. The above information is relevant as it might lead the tribunal to conclude that you do not satisfy clause 572.223(1) of Schedule 2 to the Migration Regulations as you are not a genuine applicant for entry and stay in Australia as a student; further, the information might lead the tribunal to conclude that you do not satisfy clause 572.223(1)(a) as the tribunal might conclude that you do not intend genuinely to stay in Australia temporarily; and that the decision refusing to grant you a Student (Temporary) (Class TU) visa should be affirmed. 5 Ms Joshi plainly comprehended the potential relevance to her review application of the particulars of the information provided in the Tribunal's letter. Within a week, she had provided a response. The Tribunal summarised her response in the following terms at paragraph 7 of its reasons: • After completing her course in hairdressing she could not find a job as a hairdresser in Australia. She realised that cheap hairdressers and barbers are prevalent in Nepal. She believed that the hairdressing skills she had learned would not assist her employment prospects. • She developed an interest in cookery when she obtained a job as a kitchen hand two years previously. Cooks are needed everywhere and she thinks she may open a restaurant specialising in western style food in Kathmandu when she returns to Nepal. Increasing globalization means young people in her country are interested in eating western food. • With this in [mind] she decided to study cookery. She has experienced much frustration in her attempt to stay in Australia. She has to plan her future when she returns to Nepal and she believes cookery skills gained in Australia, particularly relating to western food, will give her a good career there. 6 Mr Joshi later sent the Tribunal a statutory declaration that reiterated much of the information in her initial response. 7 The Tribunal convened a hearing at which Ms Joshi gave evidence and presented arguments in support of her and her husband's review application. It will later be necessary to refer to parts of the transcript of the hearing. That is because Ms Joshi and Mr Shrestha's submissions in support of the leave application rely heavily on some things said by the Tribunal during the hearing. It is at this stage sufficient to note two things. First, the transcript was not tendered or relied on by Ms Joshi and Mr Shrestha in the Federal Circuit Court. The Minister objected to the tender of the transcript on this basis. That objection will be dealt with later. Second, a fair reading of the hearing transcript reveals that the subject matter of the information in the s 359A letter, and Ms Joshi's response to it, was dealt with at length in the course of the Tribunal's hearing. 8 The Tribunal affirmed the decision of the delegate refusing Ms Joshi's application. The Tribunal was not satisfied that Ms Joshi was a genuine applicant for entry and stay in Australia as a student temporarily. She accordingly did not meet the criterion in clause 572.223(1) of the Regulations. The critical part of the Tribunal's reasoning in relation to that finding is at paragraph 19 of its reasons, though Ms Joshi also relies on what the Tribunal said in paragraph 20. Those paragraphs of the Tribunal's reasons are as follows: 19. Having carefully considered the applicant's evidence and the information before the Tribunal I am unable to be satisfied that she is a genuine applicant for entry and stay in Australia as a student temporarily. I accept that she is currently studying a course in Certificate IV in Commercial Hospitality, to end in June 2014, and that she is also enrolled in a course in Diploma of Hospitality to end in September 2014. As put to her in the Tribunal's letter of 15 November 2013 and at the hearing, however, she previously applied for permanent Skilled Migration on the basis of her qualifications as a hairdresser and was nominated by a hairdressing salon. This application was refused in June 2012, and some months later she commenced a course of study in commercial cookery, a quite unrelated field. I have considered the reasons she has advanced for the change in her sturdies - that she realized hairdressing would not offer good employment prospects in Nepal and that she had developed an interest in cookery from working in a restaurant in Auburn - but I do not find these convincing. I consider her actions evince a clear interest in remaining in Australia permanently, an aim which she hoped to achieve through nomination in the field of hairdressing but which she now sees as being achieved through study in commercial cookery. I am not satisfied that she does, in fact, intend to return to Nepal on completion of her studies in this field. 20. 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 she is a genuine applicant for entry and stay in Australia as a student or that she intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds that the applicant does not meet cl.572.223(1) or 572.223(1)(a).