Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 673
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
File number: SYG 321 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 18 August 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to properly consider the applicant’s evidence – whether the Tribunal acted unreasonably when coming to its decision – whether the Tribunal was required to consider material provided after its decision was made – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 368, 476, 499
Migration Regulations 1994 (Cth), cll 500.211-500.218 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9
Kumar v Minister for Immigration and Border Protection [2000] FCAFC 16
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 Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of hearing: 17 August 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr E Taylor Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 321 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SISIR BHATTARAI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
18 AUGUST 2022
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 applicant is a citizen of Nepal (Court Book (“CB”) 2). He first arrived in Australia in December 2007 as the holder of a student visa (CB 78).
He has since been granted subsequent student visas and a graduate visa (CB 75-78).
On 16 August 2016, the applicant applied for a further Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 1-17). Annexed to that visa application were copies of the applicant’s passport, a genuine temporary entrant statement and confirmation of overseas student health cover (CB 18-21).
Further supporting materials were subsequently provided to the then Department of Immigration and Border Protection (the “Department”), including an Overseas Student Confirmation-of-Enrolment (“CoE”) for a Diploma of Hospitality Management, various academic records and further confirmation of overseas student health cover (CB 23-38).
On 19 October 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 43-46). The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and, as such, found that he did not meet the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 46).
On 4 November 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 47-48). In that application, the applicant nominated a representative from Shamser Thapa and Associates (the “representative”) to act on his behalf in relation to the review.
On 4 December 2017, the Tribunal invited the applicant (via email and through his representative) to attend a hearing before it on 11 January 2018 (CB 65-74). Relevantly, that correspondence asked that the applicant provide additional materials, as follows (CB 68):
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 27 December 2017, the applicant’s representative provided additional material to the Tribunal (via email) in support of the applicant’s review application (CB 79-104).
On 11 January 2018, the applicant appeared before the Tribunal (CB 105-108). He was assisted at that hearing by his representative (CB 105).
On 12 January 2018 (at 10.50am), the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 118-125).
A short time later (also on 12 January 2018, but at 11.04am), the applicant’s representative provided a further statutory declaration to the Tribunal (via email) “to answer the question raised by the Tribunal during the hearing” relating to whether the applicant had lodged any visa applications in Australia (CB 109-113).
On 8 February 2018, the applicant sought judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is eight pages long and spans 41 paragraphs.
The Tribunal began by identifying the visa decision under review, noting that the applicant had applied for the visa on 16 August 2016 (at which time the visa contained only two subclasses) and explaining that the delegate had refused to grant the applicant the visa because the 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 applicant was a genuine temporary entrant) (at [1]-[3]).
The Tribunal detailed that the visa was refused on 19 October 2016 and that the applicant had applied for review by the Tribunal on 4 November 2016 (within time). The Tribunal confirmed that on 4 December 2017, it had invited the applicant to appear at a hearing before it, noting that the invitation included information relating to the types of evidence the applicant should consider providing. The Tribunal acknowledged that the applicant had provided documentary information ahead of the hearing and had appeared at the hearing on 11 January 2018 with his representative (and without an interpreter) (at [4]-[6]).
The Tribunal then identified that the primary criteria for the grant of the 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 applicant was a genuine temporary entrant as required by cl 500.212 in Schedule 2 of the Regulations (setting out the legislative provisions in that regard) (at [9]-[10]).
The Tribunal also 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 [11]-[12]).
The Tribunal listed the documentary evidence provided by the applicant to the Tribunal prior to the hearing and confirmed that, at the start of the hearing, the Tribunal discussed with the applicant the matters set out in the Direction and explained to him that it would have regard to those matters (at [13]-[14]).
The Tribunal then stated:
15.The applicant provided evidence that he is currently enrolled in a Diploma of Hospitality Management Course which ends in September 2018. He also provided evidence that since 2015 he has worked in his chosen field, that is hospitality, as a bar supervisor for Rydges at Sydney Airport.
The Tribunal then considered the applicant’s personal statement insofar as it related to his circumstances in his home country and noted that (at [16]):
(a)his father is in construction in Nepal but previously closed a hotel/restaurant because he lacked experience. Further, when the applicant came to Australia, it was with the intention of studying construction and returning to work with his father;
(b)his father is interested in re-opening a hotel/restaurant and would like the applicant to return to help him to do so;
(c)the applicant works at Rydges (in hospitality);
(d)he will return to Nepal with knowledge and experience in hospitality that few people have in Nepal;
(e)he could have applied for permanent residency in 2012 after completion of his Bachelor of Accounting course but did not do so because he never intended to remain in Australia;
(f)he has complied with all visa conditions; and
(g)he would like to return to Nepal in September 2018 (upon completion of his studies).
On the basis of the above, the Tribunal found as follows:
17.There is no reliable evidence before the Tribunal that the applicant has significant or substantial ties to his home country or that he intends to return there to live.
The Tribunal then considered the applicant’s “immigration history”, as follows:
(a)the applicant is a 29 year old Nepali citizen;
(b)he arrived in Australia in 2007 as the holder of a student visa (which ceased in March 2010);
(c)he has been granted subsequent student visas and has not been onshore unlawfully (at [18]);
(d)he departed on two occasions, the first being from 21 February 2016 to 18 March 2016 and the second being from 11 April 2017 to 13 April 2017 (at [19]); and
(e)noting that the applicant had been in Australia for more than 10 years and only travelled offshore twice, the Tribunal considered it reasonable that he would have visited family more often and that, had he done so, it would have given more weight to his claims to have “significant ties” to his home country (at [20]).
The Tribunal continued:
21.The applicant was 19 years of age when he came to Australia, on 31/12/2007. He is now nearly 30 years of age. He has lived almost his entire adult life in Australia (more than 10 years) and has lived almost none of his adult life in his home country, Nepal. Nor has he spent any significant time there since 2007. The Tribunal holds concerns that the applicant does not intend to return to Nepal, but that he is using the student visa programme to maintain residence in Australia.
The Tribunal then had regard to the applicant’s “academic progress”, noting that:
(a)he completed a Diploma in Accounting in 2008, a Diploma of Business Management in 2009, a Bachelor of Professional Accounting in 2012 and a Masters in Business Administration in 2014 (at [22]);
(b)he claims he could have applied for permanent residency in 2014 but did not do so because he always intended to return to Nepal; and
(c)he wants to open and run a bar upon his return to Nepal and for this reason he is studying a hospitality diploma (at [23])
The Tribunal then determined as follows:
24.Whilst the Tribunal has taken into account the applicant’s stated ambition to run his own bar in Nepal, and accepts that the applicant has achieved academic success in the courses he has studied, it does not accept that having achieved a Masters in Business Administration and having now worked in a bar/hospitality for some years, that the value of the diploma course he is now studying will add significantly to his employment prospects in his home country. It is noted also that he already has a Diploma in Business Management, awarded in 2009.
The Tribunal acknowledged evidence from the applicant that he had worked at Rydges since 2015, noting that his employer had also provided documentary evidence in that regard and confirmed that the applicant assists with “overall management” in the absence of the bar manager (at [25]).
The Tribunal continued:
26.Since 2014, when the applicant gained a Masters in Business Administration, the Tribunal does not consider he has progressed with his study, even though it is accepted he is studying and achieving satisfactory results. The Tribunal refers to the course transcript provided by Hannay College that lists the unit names the applicant has achieved competency in. They are:
a. Make a presentation
b. Recruit, select and induct staff
c. Prepare financial reports
d. Prepare and monitor budgets
e. Use hygienic practice for food safety
f. Implement and monitor work health and safety practise
g. Roster staff
h. Monitor staff performance
i. Research and comply with regulatory requirements
j. Analyse and present research information.
Having assessed the above, the Tribunal concluded as follows:
27.With the exception of “use hygienic practice for food safety”, the Tribunal’s view is that all of the other subjects are not indicated to be industry specific and it is reasonable to think that the applicant would have covered most, if not all of them, when he studied business management, accounting and business administration in the other courses he has done, at a higher academic level. The conclusion reached is that this current diploma course will not add value to the applicant’s overall employment or prospects of success when he returns to Nepal.
The Tribunal then considered “other relevant information” as follows:
(a)the Tribunal did not dispute that the applicant had been “a good student” – however, on the evidence before it, the Tribunal was not satisfied that the applicant considered his stay to be temporary (at [28]);
(b)the Tribunal noted that the applicant had not provided solid or reliable information that indicated that he had actual plans to start a bar with his father in Nepal (at [29]);
(c)the Tribunal asked the applicant about his plans and the applicant said that, when he has his hospitality qualification, he will send the documentation to apply for a bar or restaurant licence (at [29]);
(d)the Tribunal noted that no further evidence had been provided to support his claim regarding “opening a bar” (at [29]); and
(e)the Tribunal considered it unlikely that, given the applicant’s qualifications in business and his hospitality experience he would have any issue getting a bar licence (at [29]).
The Tribunal continued:
30.Having regard to the applicant’s educational qualifications and work experience that he has achieved in Australia, the Tribunal considers that he is already well equipped to work in hospitality in a management capacity and/or open his own bar with his father, as he claims to be intending to do. He has completed competency units that are detailed in the Hannay College’s letter dated 8 January 2018. By his own account, the applicant will not be applying for a job but will be starting a business with his father. Even though he has not yet completed the course, the Tribunal does not consider, in light of the other educational qualifications and the work experience he has, that he will be greatly disadvantaged by returning home without a few extra subjects. Although he said that he needs the hospitality diploma to apply for a bar/restaurant licence in Nepal, he did not provide corroborative evidence that this is the case.
The Tribunal also noted that no evidence had been provided (either personal or organisational) to support the applicant’s claimed intention to open a bar later in the year. On the basis of the above, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212(a) in Schedule 2 of the Regulations) (at [31]-[32])
The Tribunal also considered whether the applicant “intend[s] to comply with visa conditions” and noted that, on the evidence before it, the applicant had complied with his conditions to date and stated that he intended to do so until he departed. The Tribunal, having no basis to think otherwise, accepted that the applicant intended to continue to comply with visa conditions as required by cl 500.212(b) in Schedule 2 of the Regulations (at [33]-[35]).
When determining whether the applicant was “a genuine applicant for entry and stay as a student for any other relevant matter”, the Tribunal confirmed that it had considered the documentary evidence provided by the applicant to the Department and the Tribunal, together with the applicant’s oral evidence before the Tribunal (at [36]-[37]).
The Tribunal found as follows:
38.The applicant has lived in Australia since he was 19 years of age and has only returned to Nepal twice. He has lived almost his entire adult life here and the Tribunal is persuaded that he genuinely intends to depart when he finishes the diploma he is currently studying and which ends in September 2018.
The Tribunal was ultimately not satisfied that the applicant genuinely intended to stay in Australia temporarily as required by cl 500.212 in Schedule 2 of the Regulations. On that basis, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [39]-[41]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 8 February 2018 contains 7 “grounds of review” as follows (without alteration):
1. I never have any intention to remain in Australia beyond of my current study.
2. I have been genuine student before and now.
3. When I had opportunity, I did not apply permanent residency in Australia.
4.I am doing Diploma of Hospitality to gain Australian qualification to run a bar in Nepal.
5.Dispite of overwhelming evidence, Department of Immigration and Administrative Appeals Tribunals made assumption that I will not go back.
6.Their decision to reject my TU (500) application was based on unsubstantiated assumption not the facts presented.
7.I am in a view that the decision must be based on the facts not the assumption.
On 1 March 2018, procedural orders were made by Registrar Tesoriero of this Court giving the applicant an opportunity to file any amended application, any affidavit evidence and written submissions. On 2 March 2022, further procedural orders were made by Registrar van der Westhuizen of this Court again providing the applicant with an opportunity to file any written submissions. Unfortunately, no further materials were provided by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 8 February 2018, a Court Book numbering 125 pages (marked as Exhibit 1), written submissions filed by the Minister on 3 August 2022 and the affidavit of service of Poorvaja Nirmaleswaran sworn and filed on 10 August 2022 (the “Nirmaleswaran affidavit”). Both the applicant’s affidavit and the Nirmaleswaran affidavit were taken as read and in evidence.
The applicant appeared before this Court without legal representation. The Court confirmed with him that he had received copies of the materials before the Court (as outlined above).
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 (“Bala”) at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(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 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 (“Djokovic”) 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 decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant stated that he was a genuine student and genuinely wanted to study the diploma course to have some “documentation” to better support his work experience in the hospitality industry.
Unfortunately, these submissions do not address the issue of jurisdictional error. Rather, they seek an impermissible merits review.
The applicant did, however, seek to clarify his concern that the Tribunal had failed to consider evidence. This issue will be discussed by the Court below.
CONSIDERATION
Grounds of review
For ease of reference, the applicant’s grounds of review provide (without alteration):
1. I never have any intention to remain in Australia beyond of my current study.
2. I have been genuine student before and now.
3. When I had opportunity, I did not apply permanent residency in Australia.
4.I am doing Diploma of Hospitality to gain Australian qualification to run a bar in Nepal.
5.Dispite of overwhelming evidence, Department of Immigration and Administrative Appeals Tribunals made assumption that I will not go back.
6.Their decision to reject my TU (500) application was based on unsubstantiated assumption not the facts presented.
7.I am in a view that the decision must be based on the facts not the assumption.
It is noted that the applicant’s grounds of review are somewhat “skeletal” and not sufficiently particularised to be meaningful.
While there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]; upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court’s preferred approach (adopting the reasoning in Bala) is, as above, to be mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court should remain astute to the possibility of legal error in the Tribunal’s decision and should raise any concerns in that regard with the Minister: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Upon review of the applicant’s “grounds of review” and the material before it, the Court considers there to be two core issues that require consideration:
(a)whether the Tribunal failed to properly consider the applicant’s evidence; and
(b)whether the Tribunal acted unreasonably in coming to its decision.
These issues will be discussed below.
Issue 1: whether the Tribunal failed to properly consider the applicant’s evidence
To the extent that it is suggested that the Tribunal failed to consider any claims or evidence, the Court disagrees.
When conducting its review, the Tribunal is required to give “proper, genuine and realistic consideration” to all claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33].
Insofar as the applicant is suggesting that the Tribunal did not consider his claim that he had a prior opportunity to apply for permanent residency in Australia, the Court disagrees.
The Tribunal expressly references this on two separate occasions.
First, the Tribunal considered this issue when assessing the applicant’s “circumstances in his home country”, as follows:
16e.He never intended to remain in Australia permanently and says that when he finished his Bachelor of Accounting in 2012 he could have applied for permanent residency, but didn’t because obtaining permanent residency was never his dream.
Second, the Tribunal addressed this claim when considering the applicant’s “academic progress”, as follows:
23.He says that he could have applied for permanent residency in 2014 but did not because he always intended to return to Nepal to live and did not want to be a permanent resident of Australia. He remained onshore, it is noted at no time unlawfully, and now says the reason he is studying a hospitality diploma is because he wants to open and run his own bar when he returns to Nepal.
To the extent that the applicant claims that the Tribunal did not consider his future plan to run a bar in Nepal, the Court again disagrees.
In addition to [23] (as detailed above), the Tribunal also considered the applicant’s future plan relating to the opening of a bar as follows:
24.Whilst the Tribunal has taken into account the applicant’s stated ambition to run his own bar in Nepal, and accepts that the applicant has achieved academic success in the courses he has studied, it does not accept that having achieved a Masters in Business Administration and having now worked in a bar/hospitality for some years, that the value of the diploma course he is now studying will add significantly to his employment prospects in his home country. It is noted also that he already has a Diploma in Business Management, awarded in 2009.
…
29.The applicant has provided no solid or reliable information that indicates he has actual plans to start a bar with his father in Nepal. It is reasonable to think that if he intends to return to Nepal in September 2018 that he may have made some plans in this regard, as it is only now seven months away. He was asked about his plans at the hearing and said that once he has his qualification in hospitality management, he will send the documents to Nepal to start the application process for a bar/restaurant licence and that with the Australian qualification he will have a stronger chance of success. No other evidence was provided supporting this claim and the Tribunal considers it unlikely, given his substantial and excellent academic qualifications in business, together with his work experience in a bar over a two and a half year period, that he would have trouble getting a bar licence in Nepal.
30.Having regard to the applicant’s educational qualifications and work experience that he has achieved in Australia, the Tribunal considers that he is already well equipped to work in hospitality in a management capacity and/or open his own bar with his father, as he claims to be intending to do. He has completed competency units that are detailed in the Hannay College’s letter dated 8 January 2018. By his own account, the applicant will not be applying for a job but will be starting a business with his father. Even though he has not yet completed the course, the Tribunal does not consider, in light of the other educational qualifications and the work experience he has, that he will be greatly disadvantaged by returning home without a few extra subjects. Although he said that he needs the hospitality diploma to apply for a bar/restaurant licence in Nepal, he did not provide corroborative evidence that this is the case.
31.There is no evidence before the Tribunal from any person or organisation in Nepal that supports the applicant’s claim that he intends to start his own bar there later this year.
The Tribunal clearly assessed the applicant’s evidence but, based on the limited evidence relevant to “plans” in that regard, was not satisfied that the applicant genuinely intended to open his own bar as claimed.
In addition to the two specific issues above, the Tribunal also listed all of the evidence it had before it (at [13]) and went on to consider the applicant’s circumstances in his home country (at [16]-[17]), his immigration history (at [18]-[21]), his academic progress (at [22]-[27]) and other relevant information (at [28]-[35]).
The Tribunal had regard to the Direction and its obligations. In this regard the Court notes that, as correctly submitted by the Minister (at [26] in written submissions filed in this Court on 3 August 2022), there was no obligation for the Tribunal to set out each and every matter in the direction: Kumar v Minister for Immigration and Border Protection [2000] FCAFC 16 at [106]. It is clear from a review of the Tribunal’s decision as a whole that it gave weight to those matters it considered relevant to the applicant’s circumstances or that were “sufficiently material” to the applicant and his case: Wu Shan Liang at 272.
Upon review of all of the evidence and materials before it (including material provided by the applicant to the Department), the Tribunal was “not persuaded that the applicant genuinely intend[ed] to depart Australia upon completion of his hospitality diploma (at [38]). On that basis, the Tribunal could not be satisfied that the applicant was a genuine applicant for entry and stay as a student and thus did not meet the requirements set out in cl 500.212 in Schedule 2 of the Regulations (at [39]).
The Court is satisfied that the Tribunal gave proper, genuine and realistic consideration to the evidence and material before it and made a decision that is open to it.
No error arises in relation to issue 1.
Issue 2: whether the Tribunal acted unreasonably in coming to its decision
To the extent that there is any suggestion that the Tribunal acted unreasonably in determining that the applicant did not intend to stay in Australia temporarily, the Court disagrees.
Legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision making: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4].
The principles in relation to legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Before considering any of the evidence in the matter before it, the Tribunal here set out in detail the considerations it was required to have regard to, as outlined in the Direction, and how that Direction ought to be used when reaching findings on whether the applicant satisfies the genuine temporary entrant criterion (at [11]-[12]).
As outlined above in relation to issue 1, the Tribunal considered the applicant’s evidence in detail. The Tribunal’s ultimate decision was based on information provided by the applicant (being written documentation provided to the Department and to the Tribunal, together with the applicant’s oral evidence given at the Tribunal hearing).
On the basis of all of the evidence before it, the Tribunal ultimately found as follows:
37.The Tribunal has considered the documentary evidence in the Department and Tribunal files, together with the oral evidence given at the hearing.
38.The applicant has lived in Australia since he was 19 years of age and has only returned to Nepal twice. He has lived almost his entire adult life here and the Tribunal is persuaded that he genuinely intends to depart when he finishes the diploma he is currently studying and which ends in September 2018.
39.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.
The Tribunal’s findings in this matter are entirely logical and reasonable. It cannot be said here that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33].
No error arises in relation to issue 2.
Otherwise
Whether the Tribunal was required to consider material provided after its decision was made
At the hearing of this matter, the Minister’s representative (in oral submissions) raised the issue of a statutory declaration being provided to the Tribunal by the applicant’s representative after the Tribunal had made its decision.
As outlined above, on 12 January 2018 (at 10.50am), the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 118-125).
A short time later (also on 12 January 2018, but at 11.04am), the applicant’s representative provided a further statutory declaration to the Tribunal (via email) “to answer the question raised by the Tribunal during the hearing” relating to whether the applicant had lodged any visa applications in Australia (CB 109-113).
The applicant (through his representative) was then notified of the Tribunal’s decision by email on 15 January 2018 (CB 115-117).
Section 368 of the Act sets out when a written decision is taken to have been made by the Tribunal. At the time of the Tribunal’s decision (on 12 January 2018), s 368 of the Act provided as follows:
368 Tribunal’s decision and written statement
Written statement of decision
…
How and when written decisions are taken to be made
(2)A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Note: For oral decisions, see section 368D.
(2A)The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
As outlined in s 368(2)(b) of the Act, the Tribunal’s decision here was taken to have been made at 10.50am on 12 January 2018 (being the day and time the written statement was made by the Tribunal).
Once that decision had been made and the written statement produced, the Tribunal had no power to vary or revoke its decision: s 368(2A) of the Act.
Unfortunately, at the time that the applicant’s representative sent the email to the Tribunal (being at 11.04am on 12 January 2018), the Tribunal’s decision had already been made. The Tribunal was thus unable to vary or revoke its decision upon the receipt of the email correspondence (and attached statutory declaration) from the applicant’s representative.
Materiality
In the event the Court is wrong and the Tribunal ought to have considered the statutory declaration (provided by the applicant’s representative after the Tribunal’s decision was made), the Court does not consider any such error would be material.
As outlined by this Court in its decision of GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9, an error will only be jurisdictional where it is material or, more simply put, where the error would have realistically deprived the applicant of the opportunity of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (“MZAPC”).
MZAPC further confirmed that, as outlined in SZMTA, the “existence or non-existence of a realistic possibility that the decision could have been different” is a “question of fact” and the applicant in a judicial review application “bears the onus of proof” in that regard: MZAPC at [2]-[3].
The question for the Court to consider is: had the Tribunal considered the information contained within the applicant’s statutory declaration, was there a “realistic possibility” that its decision would have been different.
The Court does not consider that it would have been different.
The statutory declaration provided (CB 113) simply clarifies the applicant’s answer to a question asked by the Tribunal at the hearing regarding whether the applicant had any ongoing visa applications pending. In his statutory declaration, the applicant confirmed that he had lodged a 457 visa application offshore and that this was done at the insistence of his employer.
The Tribunal makes no mention of the applicant’s 457 visa application. Nor does it make any adverse credibility findings or raise any issue about the applicant’s incorrect answer to any questions.
In circumstances where the information contained in the statutory declaration was not a basis upon which the Tribunal considered the temporary entrant criterion, no assessment of that material could have been material or resulted in the Tribunal coming to a different decision.
When an error is not material (as is the case here), that error cannot be characterised as a jurisdictional error.
No error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 8 February 2018 fails to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 August 2022
Key Legal Topics
Areas of Law
-
Administrative Law
Legal Concepts
-
Jurisdiction
-
Proper Consideration of Evidence
-
Reasonableness
9
19
0