Adhikari v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1107
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Adhikari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1107
File number(s): SYG 1568 of 2019 Judgment of: JUDGE LAING Date of judgment: 30 November 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision refusing to grant the applicants Student (Temporary) (Class TU) visas – whether the Tribunal failed to consider claims or evidence, or accepted claims but made contrary findings without evidentiary basis – whether the Tribunal misunderstood or misapplied Direction No. 69 – whether the Tribunal’s decision was otherwise materially affected by error – application dismissed Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1994 (Cth) cll 500.212, 500.311
Cases cited: Aslam v Minister for Home Affairs [2019] FCA 383
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
S14/2002 v Refugee Review Tribunal [2004] FCAFC 171
Sapkota v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 648
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 18 September 2023 Place: Sydney Solicitor for the Applicants: Mr H Bhatta of Residency Legal Counsel for the First Respondent: Ms K Morris Solicitor for the First Respondent: HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1568 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DURGA ADHIKARI
First Applicant
DINESH PRASAD TIMILSHINA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicants seek judicial review of a decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Student (Temporary) (Class TU) visas (student visas).
BACKGROUND
The first applicant (Applicant) is a Nepalese national. She applied for the student visa that is the subject of these proceedings on 3 October 2017. Her husband, the second applicant, applied as a member of her family unit.
The Delegate refused the application on 27 November 2017, on the basis that the Applicant did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicants applied for a review by the Tribunal on 13 December 2017.
On 28 May 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the Applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in her home country, potential circumstances in Australia and the value of the course to her future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
Further criteria for consideration before the Tribunal were contained within cl 500.311 of Schedule 2 of the Regulations, which provided as follows:
500.311
The applicant is a member of a family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(a) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person and was included in:
(i) the primary person’s applications under subregulation 2.07AF(3); or
(ii)information provided in relation to the primary person’s application under subregulation 2.07AF(4); or
(b) the applicant became a family member of the family unit of the primary person:
(i) after the grant of the student visa to the primary person; and
(ii) before the application was made.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter, the criteria in issue and the effect of Direction No. 69 at [1]-[11] of its decision. The Tribunal set out the Applicant’s visa and study history as follows at [12]-[15]:
12. The female applicant in this case is a Nepalese national who first arrived in Australia on 24 January 2009 on a student subclass 572 visa. Since arriving, the applicant has been granted a further two student visas and a subclass 485 visa which was granted in April 2016 and expired in October 2017. The applicant was refused a subclass 489 visa on 12 October 2018.
13. Before arriving in Australia, the applicant completed high school in Nepal. There is no evidence before the Tribunal of any vocational or higher studies in Nepal.
14. Since arriving in Australia, the applicant has undertaken the following studies:
•Certificate III in Hospitality – successfully completed in October 2010
•Diploma of Hospitality – successfully completed in May 2011
•Bachelor of Business Accounting – commenced in August 2011, but not completed
•Bachelor of Accounting – completed in June 2015
•Diploma of Leadership Management – commenced in July 2017 and completed in July 2018
•Advanced Diploma of Leadership Management – currently studying and scheduled to complete in November 2020
15. The applicant gave evidence that she was not enrolled in a course of study between June 2015 and July 2017 because she was primarily caring for her newborn son. The Tribunal is concerned by that admission. It suggests that the applicant was in Australia during that time for a primary purpose that was not related to studying full time.
The Tribunal summarised the Applicant’s evidence regarding her circumstances in Nepal at [16]:
16. The applicant did not provide a GTE statement in support of her review application. The Tribunal has had regard to the applicant’s circumstances in Nepal, based on her evidence at the hearing, as follows:
•As to the reason for not studying in her home country, the applicant asserts that the course in Australia provides a 50% practical component, as opposed to a 10% practical component if she studies at home;
•She knew about the course from her previous studies, but had also heard of it via a friend;
•The applicant agreed that although her current course of study is a “step down” from her Bachelor of Accounting qualification, she is undertaking it to give herself the leadership skills which she believes are necessary to open her own accounting business in Nepal;
•As to the applicant’s personal ties to Nepal, the applicant is married and her husband lives with her in Australia presently. She has a young son, who is residing in Malaysia with the applicant’s parents. The applicants own property in Nepal and the applicant’s in-laws own farm land and a business in Nepal; and
•The applicants are both in paid employment in Australia. The applicant works 15 to 20 hours per week as a laundry assistant in Hobart and the secondary applicant works 20 hours per week as a cleaner. Each earns approximately $400.00 per week. They rent a property in Hobart and the applicants parents assist financially with her tuition fees.
The Tribunal accepted the Applicant’s reasons for wishing to study in Australia over Nepal. However, the Tribunal found that the Applicant did not have significant incentives for returning to Nepal. The Tribunal considered that this was “demonstrated by the fact that her husband is in Australia with her and the applicants have stable employment in Australia”. The Tribunal considered that these matters provided an incentive for the Applicant to stay in Australia on a more permanent basis (at [17]). The Tribunal was also concerned by the fact that the Applicant had been in Australia since 2009, had undertaken a series of courses and her present course appeared to be a “step down” from her Bachelor of Accounting qualification. The Tribunal was not satisfied that the course would assist her career development or earning potential, considering the qualifications she already held (at [18]).
The Tribunal was therefore not satisfied, on balance, that there were significant enough incentives for the Applicant to return to her home country (at [19]).
The Tribunal considered the applicant’s circumstances in Australia as follows at [20]-[23]:
20.The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on her evidence at the hearing, as follows:
•The applicant’s spouse is included in the applicant’s visa application as a dependant person
•The applicants love to travel in Australia, particularly throughout Tasmania; and
•The applicant knew about the course from her previous studies, but had also heard of it via a friend.
21.The Tribunal does not accept these claims to be those of a genuine student. The Tribunal is unable to conclude that the applicant has undertaken any significant research into her proposed course, based on the fact that she admitted she ‘knew of it from previous study’ and the fact that she did not study for two years before enrolling in a course that was a “step down” from her Bachelor of Accounting degree. This leads to the conclusion that the applicant isn’t in Australia primarily for the purpose of studying.
22.The Tribunal gives weight to the fact that the applicant’s husband is in Australia with her, they financially have a comfortable life in Tasmania, these factors may serve as a disincentive to return to Nepal. This leads to the conclusion that the applicant’s desire to study in Australia was secondary to her intention to remain in Australia on a more permanent basis.
23.Further, while it is not uncommon for an applicant to re-educate themselves or make a change in study plans or work pathways, the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to change a pathway from Accounting to Leadership Management in circumstances where it is not demonstrated how that pathway change will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing the further study.
The Tribunal considered that on the Applicant’s own evidence, she was earning more money as a laundry assistant in Australia than she would as an accountant in Nepal. The Tribunal considered that the Applicant had not demonstrated that completion of the nominated course would improve her remuneration prospects in her home country, or the value of the course to her future (at [25]).
The Tribunal considered the Applicant’s immigration history as follows at [26]-[27]:
26. The Tribunal has had regard to the applicant’s immigration history. The applicant admitted that she applied for a 489 visa, which was refused. The applicant has travelled to Bali for a holiday and has travelled home 3 times since being in Australia. She asserts that she has not had visa refusals or cancellations previously, save for the 489 visa.
27. The applicant’s visa history and study history indicate that the applicant has spent over 10 years in Australia, during which time she has demonstrated marginal success relating to course completion, although she admitted that she did not study for a period of two years, preferring instead to look after her infant child. The Tribunal does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily. It is consistent with seeking to use the student migration program to maintain ongoing residence in Australia.
The Tribunal considered that there was no evidence before it of political or civil unrest in Nepal, military service commitments or any other relevant information (at [28]).
The Tribunal concluded at [29]-[32]:
29. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.
30. Although the applicant provided information to the Tribunal demonstrating that she has successfully completed some studies undertaken to date, considering all the circumstances and the evidence before the Tribunal, the Tribunal does not accept the applicant’s assertions claiming to be a genuine temporary entrant.
31. On the basis of the above, 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).
32. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
As it had found that the Applicant did not meet the primary criteria for the visa, the Tribunal found that the second applicant was unable to meet the secondary criteria in cl 500.311 (at [33]).
Accordingly, the Tribunal affirmed the Delegate’s decision (at [35]).
PROCEEDINGS BEFORE THIS COURT
The applicants commenced the current proceedings through an application filed on 25 June 2019. The applicants ultimately relied upon a Further Amended Application annexed to an affidavit of Flora Zaydenberg affirmed on 28 August 2023. That application contained the following grounds:
1. The Tribunal failed to engage with a clearly articulated and substantial claims the Tribunal has accepted as the applicant’s evidence and found otherwise as to factors without evidentiary basis.
Particulars
(a) The Tribunal at (DR at 25) found that ‘the applicant has not demonstrated that the completion of the nominated course of study will improve her remuneration prospect in her home country. On that basis, the Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to her future’.
(b) The Tribunal states (DR at 24) that ‘the applicant intends to open her own business in Nepal because which her proposed course will assist her to do, because it will equip her with leadership skills’.
(c) The Tribunal at (DR at 15) suggests that ‘the applicant was not enrolled in a course of studies…’; at [17] discuss about ‘stable employment’; and at (DR at 16) ‘son and property in Nepal’.
(d) The Applicant has given a clearly articulated or contrary evidence as to these factors during the hearing.
(e) The Tribunal did not consider such substantial claims and/or took the evidence otherwise finding contrary to the claims accepted by the Tribunal.
(f) The Tribunal fell into error in doing so.
2. The Tribunal failed to discharge its obligation as to GTE review by incorrectly applying ‘value of the course’ factor as to GTE criterion under Direction No 69.
Particulars
(a) The Tribunal at (DR at 25) found that due to the applicant’s earnings stated at (DR at 24) ‘based on the applicant’s own evidence, she is earning more money as a laundry assistant in Australia than she would be as an account in Nepal’.
(b) The Tribunal in so finding compares Australian income on causal job to income after the course in Nepal.
(c) Clause 12 of the Direction requires the Tribunal to compare income of the applicant before and after the course in her home country or the applicant’s income with or without the course being completed.
(d) The Tribunal failed to consider and apply the value of the course aspect of the direction as required.
(e) The Applicant asserts that the Tribunal incorrectly applied and considered the ‘value of the course’ factor and for the reasons made an error in findings in relation to the value of the course.
Ground 1 – did the Tribunal fail to consider claims or evidence, or accept claims but make contrary findings without evidentiary basis?
As was submitted by the Minister, although the Tribunal was required to give proper, genuine and realistic consideration to the material before it, then subject to considerations of reasonableness and logicality, the ultimate weight to be afforded to such material was a matter for the Tribunal. The degree of engagement required varies according to the nature of the representations made. Care must be taken on the part of the Court not to transgress into impermissible merits review: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [24]-[26] per Kiefel CJ, Keane, Gordon and Steward JJ.
Grounds such as illogicality have high thresholds. They will not be met where the Tribunal’s reasoning is open to the Tribunal on the material before it, simply because another decision maker may have reasoned differently: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131] per Crennan and Bell JJ.
The below headings under this ground reflect the headings in the applicants’ written submissions.
Value of the course
The applicants referred to the Tribunal’s reasoning at [15]-[17] and [24], where it was suggested that the Tribunal accepted various evidence that had been given by the applicants. The Tribunal referred to the Applicant’s evidence that she would start her own business in Nepal and that she would be assisted in doing so by her proposed course. Somewhat confusingly, the applicants’ written submissions suggested both that this evidence was accepted and that it was not considered or determined by the Tribunal. I have taken these contentions to be made in the alternative.
It is apparent from the Tribunal’s reasons for decision that the Tribunal considered the Applicant’s evidence regarding her claimed intentions towards starting a business in Nepal and the claimed value of the course to these endeavours (at [16] and [24]-[25]). The Tribunal’s consideration of this evidence, however, does not mean that it was accepted by the Tribunal in its totality. Nor did it give rise to any implied acceptance by the Tribunal of the contended value of the proposed course. The Tribunal did accept (at [17]) the Applicant’s reasons for wishing to study in Australia over Nepal. However, I accept the Minister’s submission that it was nonetheless open to the Tribunal to have reasoned at [18] and [23]-[25] that the value of the course to the Applicant’s future had not been sufficiently demonstrated for the reasons that it gave. Those reasons included the Applicant’s earning potential in Australia as opposed to Nepal, the limited research that the Applicant appeared to have undertaken into the course, and the qualifications that the Applicant had already obtained.
Whilst the Tribunal’s obligation to give reasons extended to setting out findings on material questions of fact, the Tribunal was not required to set out individually each and every aspect of the Applicant’s evidence that it did not accept. It is apparent from the Tribunal’s reasoning that the Tribunal was not persuaded by the Applicant’s evidence regarding her claimed intentions, nor that her evidence sufficiently demonstrated the value of the course to her future.
The applicants suggested that the Tribunal ought to have made further inquiries if it did not accept the Applicant’s evidence, relying upon Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL).
It is apparent from the transcript of the Tribunal hearing that is in evidence (Transcript) that the Tribunal did ask the Applicant questions related to the value of her proposed course, including whether the course “improve[d] [her] salary prospects at all” (at page 13).
In any event, the applicants appear to have been sufficiently on notice of the potential for the Applicant’s evidence in this regard to have been in issue, in circumstances where the Delegate had been similarly unpersuaded by the value of the proposed course. The Tribunal was not obliged to accept the Applicant’s evidence in this regard, and the Applicant could have had no reasonable basis for expecting that the Tribunal would necessarily do so. The applicants have not sufficiently demonstrated the basis upon which it is said that the Tribunal was obliged to make further inquiries in their matter. Nor have they demonstrated any particular issue that the Tribunal was obliged to put to them, but failed to do so, in the manner considered in SZBEL.
As was found in SZIAI (at [1] and [25]), there is no general obligation upon the Tribunal to undertake inquiries. For the reasons given above and under ground 2 below, I am not persuaded that such an obligation arose beyond what the Tribunal did in the present case.
Not enrolled for 2 years
In written and oral submissions, the applicants also took issue with the Tribunal’s reasoning at [15] and [27], where it expressed concern at the Applicant’s “admission” that she had not enrolled in a course of study between June 2015 and July 2017 because she was primarily caring for her son. The applicants submitted that the Tribunal had misunderstood that the Applicant was on a 485 visa (rather than a student visa) at the time, and was therefore not required to be enrolled in a course of study.
The applicants were on notice that the gap in the Applicant’s studies and what she was doing during this period were in issue from the Tribunal’s questioning at hearing (Transcript p 6). The Applicant had given somewhat mixed evidence regarding whether or not she was on a student visa at any time during this gap in her studies. In a completed Request for Student Visa Information form (RFI Response), the Applicant had stated that she had been on “Student” visas for periods including from November 2014 to March 2016, and on the 485 visa from April 2016 to October 2017. The application date for the 485 visa was stated as November 2015. However, at the hearing before the Tribunal, the Applicant stated that she had the 485 visa during the two year gap in her studies (Transcript p 6). The Applicant had suggested that she could work full time or study on the 485 visa, that she had wanted to do an internship related to an accounting course, and that she had chosen to spend her time during the period with her child. The Tribunal considered at [12] of its decision that the Applicant’s 485 visa was granted in April 2016.
In any event, as was submitted by the Minister, the Tribunal did not go so far as to find that the Applicant had breached any visa conditions by not studying. Even if the Tribunal could have reasoned in this manner, it did not do so in the present case. Instead, what the Tribunal did at [15] was observe that there had been a two-year gap in the Applicant’s studies, where she had resided in Australia for other purposes. The fact that the Applicant had resided in Australia for a lengthy period for purposes other than study was capable of informing the Tribunal’s assessment of her present purposes or intentions, without any finding that she had breached her previous visa conditions. I am therefore not persuaded that the Tribunal’s reasoning in this regard was materially affected by any misunderstanding regarding the type of visa that she was on during this period, nor its requirements regarding study.
Stable employment
The applicants next took issue with the Tribunal’s reasoning at [17] and [22] to the effect that the applicants had stable employment in Australia and that they had a comfortable life there. The applicants contended that this finding was flawed and not based upon the Applicant’s evidence before the Tribunal. The Applicant told the Tribunal that her employment depended on the seasons, with her working about 15 to 20 hours per week generally and “little bit more hours” in the summertime (Transcript p 10). The Applicant had suggested that her husband’s hours also depended upon the seasons (Transcript p 11).
However, I accept the Minister’s submission that this evidence did not require a finding that the applicants’ work was unstable, or that the Applicant was subject to financial insecurity. The Applicant’s evidence in her RFI Response was that she had been employed as a laundry assistant since 2017, and provided information regarding her annual salary. Having regard to this and the other evidence that was given regarding the applicants’ employment history in Australia, I accept the Minister’s submission that it was open to the Tribunal to have found that they appeared to have stable employment in Australia and to have established a comfortable life in Tasmania that might serve as a disincentive for returning to Nepal.
Son and property in Nepal
The applicants contended that the Tribunal did not give “proper consideration” to the applicants’ son and property in Nepal.
I accept the Minister’s submission that the Tribunal did consider and engage with these matters, which were expressly referred to at [16] of the Tribunal’s decision. The Tribunal was nonetheless not satisfied that the Applicant had sufficient incentives to return to Nepal, considering (inter alia) the applicants’ ties to Australia and the length of time that they had resided there (at [17]-[19]). Whilst another decision maker may well have reasoned differently, it has not been demonstrated that this reasoning was relevantly closed to the Tribunal, nor that the Tribunal failed to engage with the evidence regarding the applicants’ son and property. The Tribunal appears to have found that this evidence did not outweigh the other considerations that it had identified.
Other aspects
The applicants’ written submissions also referred to the Tribunal’s non-acceptance at [21] that the Applicant had undertaken any significant research into her proposed course, based upon the fact that she “knew about it from previous study”, and to its consideration that the Applicant had not studied for 2 years and that her proposed course was a “step down” from her Bachelor of Accounting. In this regard, reference was made to SZBEL at [36]:
36. It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
I accept the Minister’s submission that the applicants were sufficiently on notice of the relevant issues from the Delegate’s decision and the conduct of the review before the Tribunal. The Delegate was similarly concerned by the applicants’ immigration history, that the Applicant appeared to have “regress[ed]” in her study path, and that the Applicant had not adequately explained her motivations for studying her proposed course in Australia. The Tribunal sent the applicants a copy of Direction No. 69, which indicated that such matters would likely be considered by the Tribunal. This included issues such as the Applicant’s knowledge and research into her proposed study (at [11(e)]), whether the proposed course was consistent with her level of education (at [12](a)] as well as her immigration history (at [14]). That such issues were live before the Tribunal would also have been apparent from the Tribunal’s questioning at hearing, including as to how the Applicant learned about the course (Transcript p 12), regarding the gap in her study (Transcript p 6) and regarding her enrolment in a course that appeared to be a “step down” (Transcript p 7).
Ground 2 – did the Tribunal misunderstand or misapply Direction No. 69?
Ground 2 contended that the Tribunal incorrectly applied the “value of the course” factor under Direction No. 69. This was by reference to the Tribunal’s finding that the Applicant was earning more money as a laundry assistant in Australia than she would earn as an accountant in Nepal. It was submitted that cl 12 of Direction No. 69 required comparison of the Applicant’s income before and after the course in her home country, or the Applicant’s income with or without the course being completed. The applicants submitted that the Tribunal therefore failed to apply the value of the course aspect of the direction correctly and erred in evaluating the value of the course.
Reliance was placed by the applicants upon [25] of the Tribunal’s decision, which was as follows:
25.The Tribunal finds that based on the applicant’s own evidence, she is earning more money as a laundry assistant in Australia than she would as an accountant in Nepal. Therefore, the applicant has not demonstrated that the completion of the nominated course of study will improve her remuneration prospects in her home country. On that basis, the Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to her future.
I accept that cl 12 of Direction No. 69 stated that, in considering the value of the course to an applicant’s future, regard should be had (inter alia) to “whether the course will assist the applicant to obtain employment or improve employment prospects in their home country”, and to the “remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study”.
However, the direction made clear that it was not to be used as a “checklist”: see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [100]-[110]. The Tribunal was, to some extent, constrained in its ability to evaluate and make findings in relation to the listed factors by the evidence and submissions that had been made before it.
The applicants were unable to point to any clear evidence that was placed before the Tribunal that would have required, or enabled, the Tribunal to undertake the evaluation for which they contended. There was some evidence of projected income, to which attention was directed by the Minister. In a statement dated 3 October 2017, the Applicant had projected her potential salary following completion of the Diploma of Leadership Management to be NPR 35,000 to 45,000 if she worked for a bank or other organisation. In the Applicant’s RFI Response and evidence before the Tribunal in 2019, the Applicant estimated her income in Nepal in fairly similar terms, as being potentially around NPR 35,000 to 50,000 or 55,000 after completion of the Advanced Diploma of Leadership Management.
However, the applicants did not point to any clear comparative evidence of projected income or associated benefit with and without the qualification that they contended was before the Tribunal and was not considered. Nor were they able to point to any clear evidence that they had provided to the Tribunal regarding how this was said to interact with their relative expenses in Australia and Nepal. Whilst the RFI Response contained some information about expenses in Australia, I was not taken to any evidence that was before the Tribunal that would have enabled the Tribunal to undertake the comparative evaluation for which the applicants contended.
The applicants submitted that further inquiries ought have been made by the Tribunal in this regard, relying upon SZIAI. They submitted that such inquiries would have been obvious, and gone to matters that were important to the assessment that the Tribunal was obliged to undertake.
However, SZIAI does not stand for the proposition that the Tribunal will fall into error by not expressly and specifically making every such inquiry of apparent relevance to a review. As was found in SZIAI, there is no general duty to inquire. It is generally for an applicant to place such evidence before the Tribunal upon which they wish to rely in furtherance of their claims. The cases in which error has been found on the basis of a failure to inquire have been “rare or exceptional”: see Sapkota v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 648 at [58]-[66] and the cases cited therein.
I am not persuaded that the present is such a case. The applicants were on notice from the Delegate’s decision that the Delegate had been “unable to assess whether their studies in Australia will add value in achieving their goal” and considered that the Applicant “may not be genuine in their intentions in respect of the type of opportunities they state in [their] application they will seek at course completion”. Through an invitation to provide information dated 5 April 2019, the applicants were advised that the Tribunal would potentially be considering the matters in Direction No. 69 and provided with a copy of the direction. The applicants were given the opportunity to provide such evidence as they wished to rely upon in response, including at a hearing before the Tribunal. The Applicant was asked, at the Tribunal hearing, about whether the course would improve her salary prospects (Transcript p 13). The Applicant was also asked at the conclusion of the hearing whether there was any further evidence that she wished to provide to the Tribunal (Transcript p 14). The applicants therefore had adequate opportunity to place such evidence regarding the value of the course that they wished to rely upon before the Tribunal.
I am not persuaded it was closed to the Tribunal to have reasoned as it did at [25] of its decision, where the Tribunal considered that the Applicant had “not demonstrated that the completion of the nominated course of study will improve her remuneration prospects in her home country”. I accept that, in this regard, the Tribunal’s use of the word “therefore” at the beginning of this sentence, and the conciseness with which the balance of the reasoning in that paragraph was expressed, was somewhat unfortunate. It did not follow from the Applicant’s ability to earn remuneration in Australia that her remuneration prospects in Nepal would not be improved by the completion of the proposed course.
However, on balance, I consider that this did not rise above looseness in language. The Tribunal’s concerns regarding the value of the course to the Applicant’s future appear to have been two-fold. Firstly, the Tribunal appears to have been concerned that the limited evidence provided by the Applicant did not sufficiently demonstrate that completion of the course would improve her remuneration prospects in her home country. Secondly, the Tribunal appears to have been concerned that even if it accepted the potential remuneration in Nepal was as claimed, the Applicant may have an incentive to remain in Australia on account of her ability to earn greater remuneration in Australia.
Such a construction is supported by the balance of the Tribunal’s reasoning. At [18], the Tribunal expressed that it was not satisfied that the Applicant’s course would “further assist her career development or earning potential in view of the qualifications she currently holds”. At [23], the Tribunal considered that it had not been demonstrated how the Applicant’s “pathway change will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing the further study”.
So construed, I find that the Tribunal’s reasoning at [25] was relevantly open to the Tribunal. I am not persuaded that it involved any misconstruction or misapplication of Direction No. 69. The Tribunal was not precluded by that direction from comparing the ability of the Applicant to earn income in Nepal after the completion of her course to her ability to earn income in Australia, in considering whether the Applicant’s evidence regarding the value of the course outweighed its concerns regarding her motivations for remaining in Australia. Although the Tribunal did not have complete evidence regarding matters such as relative costs of living, this is because such evidence was not placed before the Tribunal. If the Applicant had wanted to place evidence before the Tribunal allaying its concerns, by reference to matters such as a detailed comparison of the costs of living in both countries, then it would have been open to her to have done so.
I am therefore not persuaded that ground 2 is able to succeed.
A further matter – typographical errors
The Minister observed that there were mis-references by the Tribunal to the country of Malaysia at [16] and [19] of its decision. The Minister submitted that within context, such errors were no more than typographical errors that were immaterial. In numerous places throughout the balance of the Tribunal’s decision, the Tribunal correctly identified the applicants’ home country as Nepal.
I accept these submissions. The references to the incorrect country are plainly unfortunate. Where they occur, they have the potential to raise a concern on the part of applicants that their case has not been carefully or properly assessed. However, typographical errors can and often do occur, particularly in jurisdictions involving high volume caseloads. They do not necessarily mean that a case has not been carefully and meaningfully assessed, by reference to the correct country. The articulation of reasons does not always perfectly mirror the assessment process.
In the present case, it is apparent that the Tribunal was aware that the applicants were from Nepal. There were numerous references to that country in the Tribunal’s decision. It is not apparent that the Tribunal’s incorrect references to Malaysia had any material bearing upon the Tribunal’s decision. In these circumstances, I accept the Minister’s submission that these errors do not establish jurisdictional error: see Aslam v Minister for Home Affairs [2019] FCA 383 at [10]; S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at [27]-[35] and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38]-[39].
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 30 November 2023
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