Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 60
•31 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 60
File number: MLG 1224 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 31 January 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued or incorrectly applied relevant legislation – whether the Tribunal came to irrational conclusions about whether the first applicant would “overstay” her visa – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal’s hearing invitation was invalid – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 65, 347, 357A, 360, 360A, 379A, 379G, 425A, 441, 441A, 476, 494D, 495, 499, 500 & 501CA and Parts 5 and 7
Migration Regulations 1994 (Cth), cll 500.211, 500.212, 500.213, 500.214, 500.215, 500.216, 500.217, 500.218, 500.311 & 500.312
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37
Minister for Immigration, Citizenship and Multicultural Affairs v Nguyen [2022] FCAFC 200
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 107 Date of hearing: 24 January 2024 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondents: Mr T Young Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1224 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROSHANI BHANDARI
First Applicant
BABU RAM PAUDEL
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 JANUARY 2024
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 KENDALL:
BACKGROUND
The first and second applicants are both citizens of Nepal (Court Book (“CB”) 2-5). They are wife and husband respectively (CB 2, 4 & 18-19).
The applicants were granted initial student visas (offshore) in January 2009. The second applicant arrived in Australia later that month (in January 2009). The first applicant arrived in Australia in March 2009 (CB 35 & 37).
The applicants were each granted two further student visas (valid until July 2014 and September 2016) (CB 35 & 37).
On 12 July 2016, the first applicant applied for the Student (Class TU) (Subclass 500) visa the subject of this application (the “visa”) to complete a Bachelor of Business course (CB 1-16). The second applicant was included in that visa application as a member of the first applicant’s family unit (CB 3-5). Both applicants provided genuine temporary entrant statements with that visa application (CB 17 & 22).
On 23 August 2016, the then Department of Immigration and Border Protection (the “Department”) notified the applicants of some “concerns” raised in relation to the applicants’ study history and asked the applicants to provide more information addressing the genuine temporary entrant criterion (CB 28-39).
On 19 September 2016, the applicants provided further genuine temporary entrant statements and supporting documents to the Department via email (CB 40-116).
On 27 October 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 123-128). The delegate found that the first applicant did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). In particular, the delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily (CB 126). The delegate also found that the second applicant did not satisfy the requirements set out in cl 500.312 in Schedule 2 of the Regulations (CB 128).
On 14 November 2016, the applicants applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 131-133). In that application, the applicants appointed a registered migration agent (the “representative”) to assist them with their Tribunal review (CB 132).
On 7 March 2018, the Tribunal invited the applicants (through their representative) to attend a hearing before it on 5 April 2018 (CB 144-157). That invitation letter also asked the applicants to provide additional information as follows (CB 147):
In addition, please provide the following information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as is required for the grant of a student visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No. 69.
On or about 14 March 2018, the applicants provided additional material to the Tribunal in response (CB 158-194).
On 5 April 2018, the applicants appeared before the Tribunal to give evidence and present arguments (CB 195-197). The applicants’ representative did not attend that hearing (CB 195). The first applicant also completed a “Student Visa – GTE Questionnaire” at the hearing (CB 198-203) and provided the Tribunal with some additional supporting documents relating to her studies (CB 204-209).
Following the hearing (on 6 April 2018), the applicants also provided the Tribunal with invoices and receipts relating to the first applicant’s studies (CB 210-219).
On 24 April 2018, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 223-228).
On 7 May 2018, the applicants applied to this Court for judicial review of the Tribunal’s decision.
THE TRIBUNAL’S DECISION
This application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is six pages long and spans 34 paragraphs.
The Tribunal began by identifying the visa decision under review, noting that the applicants had applied for the visas on 12 July 2016 (at which time the visa only contained two subclasses). The Tribunal also explained that on 27 October 2016 a delegate of the Minister had refused to grant the applicants the visas because the first applicant did not meet the requirements set out in cl 500.212 of Schedule 2 of the Regulations – that is, because the delegate was not satisfied that the first applicant was a genuine temporary entrant (at [1]-[3]).
The Tribunal confirmed that on 5 April 2018 the applicants had appeared before the Tribunal to give evidence and present arguments and that they were assisted in relation to the review by their registered migration agent (at [4]).
The Tribunal then identified that the primary criteria for the grant of a Subclass 500 visa is set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations and that the issue in the present case was whether the first applicant was a genuine temporary entrant (as required by cl 500.212 in Schedule 2 of the Regulations). The Tribunal also set out the relevant legislative provisions in that regard (at [6]-[7]).
The Tribunal explained that it was required to have regard to “Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’” (the “Direction”) made under s 499 of the Act. Further, the Tribunal noted that the factors set out in the Direction should not be used as a checklist but, instead, as a guide when weighing an applicant’s circumstances as a whole (at [8]-[9]).
The Tribunal outlined the first applicant’s evidence that she had returned to Nepal to visit her family in August 2012 and further noting that the first applicant’s mother had visited her in Australia in November 2014 (at [12]).
The Tribunal then considered the first applicant’s circumstances in her home country, as follows:
(a)she had completed a Diploma in Computer Basic and Web programming in Nepal in 2008 and commenced a Bachelor of Accounting (also in 2008) which she did not complete (at [13]);
(b)she had worked at a hair salon for one year (part-time) in 2008 and for her father’s engineering business (where she did not receive a salary) (at [14]);
(c)her parents live in Nepal and her sister is studying in America. Her father owns an engineering company and her mother is a housewife (at [15]); and
(d)she had “been able to manage personal relations with her parents” through telephone calls and social media applications, however, the Tribunal did not consider that the first applicant’s personal connections overseas were a distinct incentive for her to cease living in Australia (at [16]).
The Tribunal went on to assess the first applicant’s circumstances and study in Australia, as follows:
(a)she did not receive financial support from her family in Nepal (at [17]);
(b)she had completed a large number of low fee paying courses since her arrival in Australia in March 2009 and the Tribunal was concerned that she was “using the student visa programme to maintain ongoing residence in Australia” (at [18]);
(c)the genuine temporary entrant statement from the first applicant to the Department (dated 15 September 2016) referenced her current course of study and noted that the applicants would need to return to Nepal to assist with the first applicant’s father’s business (at [19]);
(d)the Tribunal outlined the first applicant’s work details and contribution to shared rental costs and found that the first applicant’s “already substantial stay and ties within Australia present[ed] as a strong incentive for [her] to remain in Australia” (at [20]); and
(e)the first applicant had not travelled to any country outside of Nepal (other than Australia) and she told the Tribunal that she has “no issues of concern” in Nepal (at [21]-[22]).
The Tribunal then considered the value of the course to the first applicant’s future, as follows:
(a)the first applicant was studying a Bachelor of Business (scheduled to be completed by 31 July 2019) which she told the Tribunal would help her gain work in Nepal, assist with her father’s business and help her start her own business. The Tribunal was concerned that the first applicant was unable to elaborate further on her current course of study (at [23]);
(b)she told the Tribunal she would return to Nepal to support her father’s business and open a restaurant on land she and the second applicant had purchased. The Tribunal was concerned that the first applicant was unable to elaborate further about her future plans in Nepal (at [24]);
(c)the Tribunal noted that the first applicant had not provided the Tribunal any information about her future earning capacity in Nepal and the Tribunal considered that the economic disparity between Nepal and Australia was a “real incentive for the [first] applicant to remain in Australia (at [25]);
(d)the first applicant told the Tribunal about the subjects she was studying and provided receipts for her course to the Tribunal (at [26]);
(e)the Tribunal made no findings against the applicant in relation to the factors in the Direction for which it did not have any relevant evidence (at [27]); and
(f)the first applicant had completed a wide range of courses during the ten years she had been in Australia and those courses had “equipped her with the required skills to find a job” in Nepal. The Tribunal was concerned that the applicant had not taken the opportunity to depart Australia (at [28]).
The Tribunal ultimately found that the first applicant was not a genuine temporary entrant and, accordingly, did not satisfy cl 500.212(a) in Schedule 2 of the Regulations. Because the first applicant did not meet the criteria for the grant of the visa, the Tribunal also found that the second applicant did not satisfy cl 500.311 in Schedule 2 of the Regulations. On that basis, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (at [29]-[34]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 7 May 2018 contains seven “grounds of review”, as follows:
1.The Tribunal made an error of law in incorrectly applying section 65 of the Migration Act 1958.
2.The Tribunal made an error of law in incorrectly applying Clause 500.212 of Schedule 2 of the Migration Regulations 1994.
3.The Tribunal took into account irrelevant considerations in coming to its Decision.
4.The Tribunal took into account irrelevant principles and law in determining that the Applicant was not a genuine temporary entrant.
5.The Tribunal came to irrational conclusions on the evidence, namely that Nepal is a poor country and the Applicant would overstay in Australia.
6.The Tribunal came to an irrational conclusion that the Applicant's studies were designed to permit her to overstay in Australia.
7. The Tribunal exhibited bias in its findings and reasons.
The applicants also filed an affidavit in support of that judicial review application (sworn by the first applicant and filed on 7 May 2018). That affidavit sets out some background history and reads as follows:
4.The Tribunal was unfair in the way the hearing was conducted and took a view that people like me from Nepal were trying to use our student visas to overstay in Australia.
5.I am a genuine temporary student and seeking to complete my accounting degree. I have had to do extra courses to slowly build my education and learning level.
6. I am not studying short courses simply to overstay in Australia.
7.Just because I am from Nepal does not mean that I do not want to return back to Nepal. My family has a very successful business in Nepal. My studies here will help in re-joining my family business.
8. All I seek is that I be allowed to complete my bachelor degree.
9. I am not seeking to use my student visa to stay back permanently in Australia.
10. I seek that I be given a new fair hearing before a different Tribunal Member.
On 12 June 2019, procedural orders were made by Registrar Allaway giving the applicants an opportunity to file an amended application, any written submissions and any additional evidence. No additional materials were provided by or on behalf of the applicants.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicants on 7 May 2018, a Court Book numbering 231 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 9 January 2024.
The first applicant appeared before this Court on 24 January 2024 (via video link) without legal representation. Mr Taylor Young from Mills Oakley appeared on behalf of the Minister (also via video link).
The Court confirmed with the first applicant that she had received copies of the Court Book and the Minister’s written submissions. The first applicant also confirmed that she would speak on behalf of her husband (the second applicant).
Noting that the first applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained to the Court that she had tried to explain to the Tribunal the reasons for her changes in study – stressing that she “wanted to have the appropriate degree to help her father” before returning to Nepal. She also told the Court that, at the time of the Tribunal hearing, she had already completed approximately seventy percent of her course and she only needed the visa to complete the remaining thirty percent. The first applicant also raised concerns that the Tribunal had focused on the fact that Nepal is a poor country when concluding that she “would overstay her visa”.
When asked by the Court if she was still studying, the first applicant explained that she had finished her course in July 2019 and had her graduation ceremony in December 2019. Following her graduation, the first applicant said she had planned to return to her home country but had a daughter in January 2020 – then the COVID-19 pandemic hit and she was unable to return. She then had a son in April 2023 and, although she was going to withdraw her application, her “personal life was very busy”.
These issues, to the extent that they address jurisdictional error, will be considered below.
CONSIDERATION
Judicial review application and the first applicant’s affidavit
Having considered all of the materials before it (including the applicants’ grounds of review, the information included in the first applicant’s affidavit and issues raised in her oral submissions to this Court) and noting that the applicants were unrepresented before this Court, the Court has interpreted the first applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392).
On that basis, the Court considers the applicants to raise the following concerns:
(a)whether the Tribunal misconstrued or incorrectly applied relevant legislation;
(b)whether the Tribunal came to irrational conclusions regarding whether the first applicant would “overstay” her visa;
(c)whether the Tribunal’s decision was affected by bias; and
(d)whether the Tribunal failed to afford the applicants procedural fairness.
Whether the Tribunal misconstrued or incorrectly applied relevant legislation
The applicants claim that the Tribunal erred in its application of relevant legislation (referencing, in particular, s 65 if the Act and cl 500.212 of the Regulations).
At the time of the Tribunal’s decision, s 65 of the Act provided as follows:
65 Decision to grant or refuse to grant visa
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
The Court also notes that cl 500.212(a) in Schedule 2 of the Regulations provided as follows:
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.
Here, the Tribunal correctly identified that the issue before it was whether the first applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212(a) in Schedule 2 of the Regulations) and noted that, in considering whether the first applicant met those requirements, the Tribunal was required to have regard to the factors set out in the relevant Direction: s 499(2A) of the Act (at [6]-[9] in its reasons).
The Tribunal went on to consider the relevant factors under the Direction for which it had evidence (at [13]-[28] in its reasons) and ultimately determined that the first applicant did not meet the criteria set out in cl 500.212(a) in Schedule 2 of the Regulations. This was because the Tribunal was not satisfied that she genuinely intended to stay in Australia temporarily (at [29]-[32] in its reasons).
Because the first applicant (being the primary visa applicant) did not meet the criteria for the grant of the visa, the Tribunal also determined that the second applicant could not be granted the visa as he did not satisfy cl 500.311 in Schedule 2 of the Regulations (at [33] in its reasons).
In circumstances where the Tribunal (standing in the shoes of the Minister) was not satisfied that the criteria for the grant of the visa had been met (as provided by s 65(1)(a)(ii) of the Act), the Tribunal was required to “refuse to grant the visa[s]”: s 65(1)(b) of the Act.
The Court is therefore satisfied that the Tribunal correctly applied the relevant legislation and no jurisdictional error arises in this regard.
Whether the Tribunal came to irrational conclusions regarding whether the first applicant would “overstay” her visa
The applicants suggest that the Tribunal came to irrational conclusions in determining that the first applicant would “overstay in Australia”.
The applicants claim that the Tribunal irrationally came to this conclusion “on the basis that Nepal is a poor country” and on the basis that the first applicant’s studies were such that it resulted in her being “permitted” to overstay in Australia.
Insofar as the applicants take issue with the Tribunal considering the first applicant’s circumstances in her home country, the Court notes that the Direction specifically provides that a decision-maker may have regard to the “economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country”. Further, any such consideration may include “consideration of the applicant’s circumstances relative to the home country and Australia”: s 9(c) in Part 2 of the Direction.
The Tribunal did so in this matter as follows:
14.The applicant told the Tribunal that she had worked part-time at a hair salon for one year in 2008 and for her father’s Shankar Shakti Engineering & Metal IND. PVT. LTD (AAT folio is 65 – 69) business and did not receive a salary.
…
20.The applicant told the Tribunal that she currently lives in St Albans with her husband in a shared rental and contributes AUD $550 per month towards the rent. The applicant stated to the Tribunal that she currently works 20 hours per week part-time at Albert Street Deli in East Melbourne and earns AUD $20 per hour and that her husband does not currently work. The Tribunal finds that the applicant’s already substantial stay and ties within Australia presents as a strong incentive for the applicant to remain in Australia.
…
25.The Tribunal considers that the economic disparity between Nepal and Australia is common knowledge and is a real incentive for the applicant to remain in Australia. The applicant did not provide or inform the Tribunal as to her future earning capacity back in Nepal. Even taking into account the greater living expenses in Australia the Tribunal does not accept that the applicant genuinely intends to stay in Australia temporarily.
As outlined above, the Tribunal determined that, based on the evidence before it, including the economic disparity between Nepal and Australia, the first applicant had a strong incentive to remain in Australia.
The Court considers the Tribunal’s findings in this regard to have been based on the information and evidence before it. They were, contextually, logical and reasonable.
To the extent that the applicants take issue with the Tribunal’s consideration of the first applicant’s study history, the Court notes that the Tribunal detailed her studies in its reasons, as follows:
18. The applicant submitted to the Tribunal certificates for the following courses:
•Food Safety Supervisor (AAT folio 50) Hales Institute 11 June 2009
•Follow Workplace Hygiene Procedure (AAT folio 51B) Hales Institute 11 June 2009
•Apply First Aid (level 2) (AAT folio 47) new futures training 26 February 2010
•Certificate III in Aged Care (AAT folio 47B) New Futures Training 9 April 2010
•Diploma in Information Technology (networking) (AAT folio 43) Victorian Institute of Technology (VIT) 9 May 2011 to 20 May 2013
•Diploma of Interactive Digital Media (AAT folio 52) Victorian Institute of Technology commenced 21 May 2013 and completed on 3 June 2014
•Certificate III in Commercial Cookery (not currently listed) Metro College of Technology 16 April 2014
•Certificate IV in Commercial Cookery (AAT folio 45) Metro College of Technology 16 April 2014
•Advanced Diploma of Marketing (AAT folio 48B - 49) Victorian Institute of Culinary Arts and Technology commenced 20 July 2015 and completed 12 September 2016
•Advanced Diploma of Management (AAT folio 54B) Victorian Institute of Culinary Arts and Technology 13 September 2016
Having detailed the courses completed by the first applicant, the Tribunal continued as follows:
The Tribunal acknowledges that the applicant has completed a large number of low fee paying courses since arriving in Australia on 31 March 2009. The Tribunal is concerned that the applicant is using the student visa programme to maintain ongoing residence in Australia and therefore does not intend generally to stay temporarily in Australia.
Based on the studies outlined above, the Tribunal ultimately determined as follows:
28.During the almost 10 years the applicant has been in Australia the applicant has completed a wide range of courses that have equipped her with the required skills to find a job back in Nepal according to her future plans. The Tribunal is concerned that the applicant has not taken the opportunity to depart Australia and therefore is not a person who genuinely intends to stay in Australia temporarily and instead intends to prolong an already substantial stay.
The Court is satisfied that the Tribunal was thorough in its consideration of the first applicant’s study history and considers that it was open to the Tribunal, based on that study history, to conclude as it did in relation to that study.
Whilst this Court may not necessarily have come to the same conclusion, the Court is satisfied that the findings were open to the Tribunal.
No jurisdictional error arises in this regard.
Whether the Tribunal’s decision was affected by bias
The applicants also suggest the Tribunal was biased.
In relation to any concerns about bias, it is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove an allegation for bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
There is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicants to attend a hearing, asked the applicants to provide additional information to the Tribunal, gave the applicants opportunities to provide additional evidence (both before, at, and after the Tribunal hearing) and considered the evidence provided to it. The Tribunal also asked questions of the first applicant at the hearing before it and assessed her responses.
Having considered the applicants’ circumstances and the evidence before it, the Tribunal ultimately determined that the first applicant was not a genuine temporary entrant and affirmed the delegate’s decision refusing to grant the applicants the visas.
The Court is satisfied that the Tribunal was not biased in its review of this matter and no jurisdictional error arises in this regard.
Whether the Tribunal failed to afford the applicants procedural fairness
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this matter and notes that:
(a)the Tribunal invited the applicants (through their representative) to attend a hearing before it (CB 144-157);
(b)in the invitation letter, the Tribunal also asked the applicants to provide additional information to the Tribunal in support of their review application (CB 147);
(c)the applicants provided additional information to the Tribunal (ahead of, at, and after the hearing) and the Tribunal considered that information;
(d)the dispositive issue before the Tribunal (being whether the first applicant was a genuine temporary entrant as required by cl 500.212 in Schedule 2 of the Regulations) was the same as the issue before the delegate and which led to the refusal of the applicants’ visas. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter and the Tribunal complied with s 360 of the Act; and
(e)as outlined above, there is no evidence before this Court to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal afforded the applicants procedural fairness in this matter and no jurisdictional error arises in this regard.
Otherwise – whether the Tribunal’s hearing invitation was invalid
In written submissions (filed in this Court on 9 January 2024), the Minister raised an additional issue with the Court as model litigant. Relevantly, the Minister submitted that the Tribunal’s hearing invitation letter, which was sent to the applicants’ authorised representative, “was invalid because it was not given to the applicants by one of the methods specified in s 379A” of the Act: s 360A(2) of the Act.
Relevant legislative provisions
Before addressing this issue, it is useful to first set out the relevant legislative provisions.
Part 5 of the Act applies to Part 5-reviewable decisions of this sort.
An application for review of a Part 5-reviewable decision must be made in the approved form: s 347(1)(a) of the Act. The Minister may (in writing) approve a form for the purpose of a provision of the Act in which the expression “approved form” is used: s 495 of the Act.
Except in certain circumstances (which are not relevant to the matter before this Court), the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 360(1) of the Act.
The Act also specifies how the Tribunal must give an applicant notice of an invitation to appear. That information is set out in s 360A of the Act, which relevantly provides as follows (emphasis added):
360A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Section 379A of the Act sets out a number of methods by which the Tribunal may give documents to an applicant, including, relevantly, transmission by email to the last email address provided to the Tribunal by the recipient in connection with the review: ss 379A(5)(a) and (d) of the Act.
Section 379G of the Act, however, provides that an applicant may nominate an authorised representative to receive correspondence on his or her behalf. Section 379G of the Act relevantly provides as follows (emphasis added):
379G Authorised recipient
(1) If:
(a)a person (the applicant) applies for review of a Part 5‑reviewable decision; and
(b)the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note:If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(1A) For the purposes of subsection (1):
(a)paragraph (1)(a) is taken to also apply to an application for review of a Part 5‑reviewable decision where the application is not properly made under section 347; and
(b)in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not properly made under that section).
(2)If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3)Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
(3A)In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(5)This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
Application for review made to the Tribunal
In this matter, the applicants applied for review of the delegate’s decision by the Tribunal on 14 November 2016 (CB 131-133). They did so by completing and lodging a “Form eM1 – Application for review to the Migration and Refugee Division” document and lodging it electronically (CB 131).
In that application, the applicants appointed a registered migration agent to assist them with their Tribunal review (CB 132). Relevantly, the applicants provided the name and address of their representative to the Tribunal and provided contact telephone numbers (a landline and mobile number) and an email address.
The information provided is set was as follows:
Whilst not entirely clear, the Minister appears to submit that the review application form did not indicate that the representatives could receive documents in connection with the review instead of the applicants for the purposes of s 379G(1)(b) of the Act.
In this regard, the Minister relies a decision of the Full Court of the Federal Court in Minister for Immigration, Citizenship and Multicultural Affairs v Nguyen [2022] FCAFC 200 (“Nguyen”) which, relevantly, provides as follows:
22The terms of subs 494D(1) require the notice to be in connection with “specified matters”. This is a demand for expressed specificity. To “specify” is to “name expressly, mention definitely (items, details, ingredients etc)”: The Concise Oxford Dictionary (6th ed, 1976): or is “to mention, speak of or name (something) definitely or explicitly; to set down or state categorically or particularly…”: The Shorter Oxford English Dictionary (3rd ed, 1973, reprinted 1986).
23The Minister sought to have the Form 956 read in the context (the later context) in which it was provided, being the communications concerned with seeking the revocation of the cancellation.
24On 30 March 2021, a Departmental officer sent an email to the migration agent stating that 23:59 hours on 1 April 2021 (that is, 28 days from 4 March) was the strict statutory time limit. The email used the language of application: “an application must be submitted and received…”. This was in answer to the migration agent’s email of 27 March 2021 asking for an extension of time “to complete the revocation application”. On 1 April 2021 at 19:25 hours, the agent submitted “required forms and documents”. He referred in the covering email to “our revocation application”. The documents included the Form 956.
25Thus, it was submitted by the Minister that the Form 956 should be read as referable to the application to revoke the cancellation even though the Form 956 did not refer to cancellation process but to application process.
26There was no basis to view the document signed by Ms Nguyen on 26 February 2021 as meaning and being understood by the Department (its officers knowing that she received the notice on 4 March) to mean other than what it said on its face: that it was an authorisation to receive documents in connection with the matters specified in the Form 956, being all matters concerned with an application process. There was no basis to view the document as an authorisation to receive documents in connection with other matters not specified, but which were able to be specified on the Form 956: “cancellation process” (box 15) or visa cancellation or consideration of visa cancellation (box 12).
27Subsection 494D(1) requires notice to be in connection with specified matters. Even assuming one can look at the surrounding emails, there was here no express or definite or explicit or categorical or particular mention of authorisation to receive documents in connection with representations or requests or even an application, to revoke the cancellation. Thus, without such, even if it be the case that one possible, or even open, reading of the body of communications in late March and on 1 April was that inferentially the migration agent intended the Form 956 to be read as directed to the request for revocation, there was no express notice by Ms Nguyen or by the migration agent of her authorisation of the agent to receive documents in connection with specified matters. If the notice is equivocal and not clear in express terms that it extends from application process to an application or request as part of the process to have revoked a cancellation of a visa, it is not a notice of the latter application or request that satisfies subs 494D(1).
How the Tribunal proceeded in this matter
On 7 March 2018, the Tribunal invited the applicants (through their representative) to appear at a hearing before it on 5 April 2018 to give evidence and present arguments (CB 144-157). That invitation was sent via email to the email address provided for the applicants’ representative in their review application (CB 132 & 144).
As outlined above, that invitation letter also asked the applicants to provide additional information in relation to the first applicant’s current enrolment, evidence of past studies in Australia and statements addressing the genuine temporary entrant criterion (CB 147).
The applicants provided additional material to the Tribunal in response (on or about 14 March 2018) (CB 158-194).
On 5 April 2018, both applicants appeared before the Tribunal to give evidence and present arguments (CB 195-197). The applicants’ representative did not attend that hearing (CB 195). The first applicant also completed a “Student Visa – GTE Questionnaire” at the hearing (CB 198-203) and provided some additional supporting documents relating to her studies (CB 204-209).
Following the hearing (on 6 April 2018), the applicants provided the Tribunal with further invoices and receipts relating to the first applicant’s studies (CB 210-219).
On 24 April 2018, having assessed the materials provided by the applicants and the oral evidence given at the hearing, the Tribunal ultimately affirmed the decision refusing to grant the applicants the visas.
Did the Tribunal err by sending the hearing invitation to the applicants’ representative?
As set out above, the Minister submits that the review application form did not indicate any authorisation of the representative to receive documents in connection with the review instead of the applicants for the purposes of s 379G(1)(b) of the Act and, as such, the Tribunal’s hearing invitation was invalid because it was not given to the applicants by one of the methods specified in s 379A of the Act.
The Minister relies on Nguyen in that regard.
The Court disagrees for the reasons that follow.
In Nguyen, the Full Court of the Federal Court dismissed an appeal from the Federal Court. The Federal Court had allowed an application for judicial review of a decision of the Tribunal. The Tribunal found that it had no jurisdiction to review a decision under s 501CA of the Act not to revoke the cancellation of the applicant’s visa. The Tribunal found that the review application made by Ms Nguyen was not lodged within 9 days after the day on which she had been notified of the decision as required by s 500(6B) of the Act. It is relevant to note that notification of the non-revocation decision was sent to Ms Nguyen’s migration agent and not to Ms Nguyen personally.
The primary judge held that the Form 956 (being a standard form used to give notice of the appointment of a migration agent and authorised recipient to the Department) did not validly appoint Ms Nguyen’s migration agent as her authorised recipient for the purposes of s 494D of the Act.
The Full Court upheld the primary judge’s conclusion that the Form 956 (as drafted in that case) did not authorise Mr Nguyen’s migration agent to receive documents in relation to the visa cancellation process. Rather, it was a notification only in respect of all immigration matters where there was an application process (at [15]-[29]).
It bears noting that the Form 956 in question provided three options under a heading “type of assistance” being provided. The options included an “application process”, a “cancellation process” or a “specific matter” and the form specified that only one option should be selected. The option “selected” in the Form 956 in Nguyen was an “application process”.
The Court also notes that the Full Court expressly disagreed with the primary judge’s conclusion that s 494D of the Act required the notice to state that the authority conferred is for the Minister to give documents to the authorised recipient instead of the person concerned (at [11], [30]-[38]). “[I]t is not necessary for written notice contemplated by subs 494D(1) to state that the other person is authorised to receive documents instead of the first person” (at [38]).
The circumstances of this matter differ to those that arose in Nguyen. Here, the applicants completed their “application for review” form and included details of their authorised recipients in that form.
The Court acknowledges that the Tribunal’s application form does not expressly include words indicating “authorisation” for that representative to “receive documents”. However, the Court is satisfied that, in the context of the way in which the details were provided (that is, where the details were provided with an application for the Tribunal to review the delegate’s decision), it is reasonable to infer that the representative is appointed to provide assistance in relation to that review (and, by extension, to receive documents in relation to that review).
The Court also notes that, unlike the form completed in Nguyen, the form in this matter did not provide different options in relation to the assistance that could be provided by the representative and it was not a separate form to the application made. That is, the appointment of the representative formed part of the “application for review” form.
In those circumstances, the Court is satisfied that the representative was properly appointed as an “authorised recipient” as contemplated by s 379G of the Act and that the Tribunal’s hearing invitation (sent to the applicants’ representative) was valid.
In the event that the Court is wrong and the appointment of the representative was invalid, whilst this would amount to an error on the part of the Tribunal, the Court does not consider that any such error would be a jurisdictional error in the circumstances of this matter.
In this regard, the Court references the decision in Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 (“SZIZO”). In SZIZO, the High Court considered s 425A of the Act (being the equivalent provision under Part 7 of the Act), together with ss 441A and 441 of the Act (being equivalent to ss 379A and 379G of the Act). In SZIZO, the Tribunal failed to provide the hearing invitation to the authorised recipient. The High Court found, however, that this did not result in any adverse consequence for the applicants because the applicants and their authorised recipient attended the hearing.
Relevantly, the High Court in SZIZO stated (footnotes omitted):
34.In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review.
35.While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal’s obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal’s omission and they do not take issue with the Full Court’s characterisation of the result in the circumstances as being “rather absurd”. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case.
36.Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.
In the circumstances of this matter, the applicants were given “timely and effective notice” of the Tribunal hearing through their representative. They provided additional documents to the Tribunal prior to, at, and following the Tribunal hearing (CB 158-194 & 204-219). They also attended the Tribunal hearing to give evidence and present arguments (CB 195-197) and the first applicant completed a questionnaire at the hearing (CB 198-203). There is also no evidence before the Court to suggest that the applicants sought an adjournment of the Tribunal hearing or asked for (and were denied) additional time to provide any more information to the Tribunal.
On the basis of the information above, the Court is satisfied that the applicants were able to properly advance their case before the Tribunal and any failure to comply with the requirements of s 379A of the Act (though the Court does not consider any such failure existed) did not deny the applicants natural justice.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit (filed by the applicants on 7 May 2018) have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 January 2024
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