FEDERAL COURT OF AUSTRALIA Basnet v Minister for Immigration and Border Protection [2015] FCA 510 Citation: Basnet v Minister for Immigration and Border Protection [2015] FCA 510 Appeal from: Basnet v Minister for Immigration & Anor [2014] FCCA 2720 Parties: DEVEN BAHADUR BASNET v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 1326 of 2014 Judge: COLLIER J Date of judgment: 25 May 2015 Legislation: Migration Act 1958 (Cth) s 65 Migration Regulations 1994 (Cth) cl 572.235 of Sch 2, para 8516 Cases cited: Baidakova v Minister for Immigration & Multicultural Affairs [1958] FCA 1436 Kim v Witton (1995) 59 FCR 258 Date of hearing: 25 May 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 19 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondents: Mr D Hughes Solicitor for the First Respondents: DLA Piper Australia Counsel for the Second Respondents: The Second Respondent entered a submitting appearance, save as to costs IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 1326 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: DEVEN BAHADUR BASNET Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE OF ORDER: 25 MAY 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 1326 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: DEVEN BAHADUR BASNET Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE: 25 MAY 2015 PLACE: SYDNEY REASONS FOR JUDGMENT Background 1 The appellant, Mr Basnet, is a citizen of Nepal. He first came to Australia in or before 2011. He is in this Court because on 18 July 2012 he applied for a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth), however his application was rejected on 24 September 2012 by a delegate of the Minister, and subsequently this decision to reject his application has been affirmed by the Migration Review Tribunal and the Federal Circuit Court. 2 The delegate of the Minister refused to grant Mr Basnet the visa for which he applied on the basis that he did not satisfy cl 572.235 of Sch 2 to the Migration Regulations 1994 (Cth) ("Migration Regulations"). This was because he had not complied substantially with the conditions of the last substantive visa and/or any subsequent bridging visa. In particular, the delegate found that Mr Basnet had breached condition 8516 of his last substantive visa which required him to "continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa". The Migration Review Tribunal 3 On 23 December 2013 the Tribunal wrote to Mr Basnet, and (inter alia) asked him to provide a copy of his current Confirmation of Enrolment as required for the grant of the visa, documents which indicated that he was enrolled or had an offer of enrolment in a registered course as required for the grant of the visa, documents relating to his study in Australia and an explanation of any gaps in enrolment and documentary evidence relevant to his explanation. He was also invited to attend a hearing on 4 February 2014. 4 It seems that Mr Basnet did not supply any of the documents requested by the Tribunal prior to the hearing. At the hearing he submitted his passport and a Confirmation of Enrolment in a Bachelor of Business course offered by the Holmes Institute due to run from 17 March 2014 until 31 December 2016. In its decision the Tribunal stated that Mr Basnet's evidence concerning his activities between 29 April 2011 and 4 June 2012 were very vague, although he claimed that he had ceased studying during that time because he had run out of money but was now ready to resume studying. 5 The Tribunal noted that condition 8516 of Mr Basnet's previous substantive visa had required him to "continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa". The Tribunal also found that this was a question of fact, to be determined having regard to the particular circumstances of the case: Kim v Witton (1995) 59 FCR 258 and Baidakova v Minister for Immigration & Multicultural Affairs [1958] FCA 1436. 6 The Tribunal noted again Mr Basnet's concession that he was not studying for most of the duration of his last student visa. It found that he had committed a significant breach of conditions of that visa and that from 29 April 2011 until 4 June 2012 he did not satisfy the requirements of condition 8516 of his visa because he was not enrolled and studying. The Tribunal also considered Mr Basnet's claim that he was not studying because of financial difficulties, however it was not satisfied that this reason adequately accounted for his lack of involvement in study during that period. Rather, the Tribunal was satisfied that he was not studying during that period because was not interested in studying, and was pursuing other interests. Federal Circuit Court 7 In the Federal Circuit Court Mr Basnet sought review of the decision of the Tribunal on the following grounds: 1. The finding by the second respondent that the Applicant was "not interested in studying" and the "he deliberately flouted the conditions of his last student visa because he was pursuing other interests" is not supported by any facts. The second respondent did not have jurisdiction to affirm the decision of the delegate of the first respondent to refuse the visa as the delegate of the first respondent: a. Fails to accept the evidence of the Applicant that he did make attempts to seek support from the education provider however that he found that the institution was closed and that is the reason he could not continue his studies. b. The decision of the second respondent is infected with the error of the delegate as stated at (a) above and consequently in accordance with the principles outlined by the Full Federal Court in the MIMA v Seligman (1999) FCA 117, the second respondent did not have jurisdiction to affirm the decision of the first respondent to refuse the visa. 2. Further and/or in the alternative: The finding by the Tribunal that the "Tribunal is satisfied that the applicant's financial circumstances prevented him from studying during the relevant period "is an unreasonable decision" in accordance with MIBP v Singh [2014] FCAFC 1. 8 In relation to these grounds of review the Federal Circuit Court Judge found, in summary: In respect of the first ground, his Honour rejected the submission that there was no evidence for the Tribunal's adverse credibility conclusion, on the basis that the evidence was that obtained from Mr Basnet at the Tribunal hearing, and there was no other evidence before me. In respect of the second ground, his Honour concluded that while this could be a case about which reasonable minds could differ, he had no hesitation in concluding that the Tribunal was entitled to make the decision it did on the material before it, and that the decision was not illogical or irrational. 9 His Honour dismissed the application with costs. Appeal to this Court 10 In this Court Mr Basnet raised six grounds of appeal: 1. A decision which lack [sic] an evident and intelligible justification is unreasonable. 2. The trial judge erred in failing to find that the decision of the second respondent lacks an evident and intelligible justification and was therefore unreasonable. 3. For the decision to have an evident and intelligible justification the second respondent ought to have identified with precision exactly which condition or provision had not been met and how the appellant had not met such condition or provision. It did not do so. 4. The provision paragraph 573.235 in Schedule 2 and paragraph 8516 of the Migration Regulations 1994 are somewhat circular and still require reference to the actual provision that it is found that the appellant had not complied with (a difficulty possibly acknowledged by the fact that paragraph 573.235 was repealed with effect from 22 March 2014). 5. Further and/or in the alternative, the second respondent failed to properly interpret paragraph 573.235 in Schedule 2 and paragraph 8516 of the Migration Regulations 1994 and as such the decision was infected by jurisdictional error. 6. The trial judge erred in having failed to identify that error of interpretation. 11 At the hearing this morning there was no appearance by Mr Basnet. I caused the matter to be called outside the Court room but there was no response by Mr Basnet. Mr Hughes for the Minister informed me that Mr Basnet had previously had legal representation, but that legal representation had ceased. Mr Hughes also tendered an affidavit of Ms Vanessa Page, an administrative assistant employed by the respondents' solicitors, affirmed 22 May 2015. In that affidavit Ms Page deposed that she had caused to be served, by courier, a copy of the Minister's written submissions on Mr Basnet at his last known address. Those submissions were annexed to a letter reminding Mr Basnet of the date, time and place of today's hearing. 12 During a temporary adjournment my associate sought to ring Mr Basnet. The mobile number provided by Mr Basnet on material in the Tribunal simply answered with a voicemail message. No other telephone number has apparently been provided by Mr Basnet to the Federal Court Registry. 13 I also note an email on the Court file indicating that the Senior Co-ordinator of Registry Services in the New South Wales Registry emailed Mr Basnet on 15 May 2015 informing him of the Registry's unsuccessful attempts to telephone him, and reminding him of details of today's hearing. 14 It may be that Mr Basnet is experiencing difficulties due to the cessation of his legal representation. However in his absence I am not able to draw this, or any other conclusions, from this event. 15 I am satisfied that reasonable attempts have been made to inform Mr Basnet of today's hearing. I note that no submissions have been filed by Mr Basnet. 16 In the circumstances I am satisfied that no explanation has been provided by Mr Basnet for his failure to appear at the hearing today. In my view it is both appropriate and possible to determine the proceedings on the material before the Court. 17 The Minister submits that the notice of appeal raises new issues not raised below, and therefore leave is required. In my view this is correct. It is only in this Court that the following issues have been raised, namely: that the decision of the Tribunal lack an evident and intelligible justification; that the relevant provisions of the Migration Regulations are circular; that the Tribunal failed to properly interpret Sch 2 para 573.235 and para 8516 of the Migration Regulations. 18 However while the Minister opposes the grant of leave, it is clear that the Minister is able to meet these grounds of appeal. Accordingly I consider it proper to examine them. In doing so, I have nonetheless formed the view that they do not have merit because: I do not accept that there was a lack of an evident and intelligible justification in the Tribunal's reasons, because the reason clearly provided by the Tribunal for its decision was that it was not satisfied with Mr Basnet's explanation why he had not studied during the period 29 April 2011 until 4 June 2012. While I consider it somewhat surprising that the Tribunal should have gone on to find, as a matter of fact, that during that Mr Basnet was not interested in studying and was pursuing other interests, in my view: o this is a factual finding of the Tribunal; o if Mr Basnet has not studied for a period of 13 months a factual finding open on the material before the Tribunal was that he was not interested in studying; and o to this extent the Tribunal clearly rejected Mr Basnet's explanation that he had not studied for the sole reason that he had become short of funds. I do not consider that the para 573.235 in Sch 2 and para 8516 of the Migration Regulations are circular or that the learned Judge below accorded them an incorrect interpretation. 19 In my view the proper order is to dismiss the appeal, with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 25 May 2015