Bhujel v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 22
•19 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhujel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 22
File number(s): SYG 924 of 2021 Judgment of: JUDGE LAING Date of judgment: 19 January 2024 Catchwords: MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – 23 grounds of review relied upon – extension of time granted – application otherwise dismissed Legislation: Migration Act 1958 (Cth) ss 360, 477, 499
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 15 August & 3 November 2023 Place: Sydney Appearing for the Applicants: In person Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: MinterEllison Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 924 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROJINA DALLAKOTI BHUJEL
First Applicant
BIKASH BHUJEL
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
19 JANUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time to make the originating application in this matter is extended up to and including 26 May 2021.
2.The application to this Court, as recorded in the amended application filed on 10 November 2021, is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Student (Class TU) (Subclass 500) visas (student visas).
BACKGROUND
The first applicant (Applicant) is a citizen of Nepal. On 30 April 2019, she applied for a student visa. The second applicant, her husband, applied as a member of the family unit.
The Delegate refused the application on 18 July 2019. The Delegate was not satisfied that the Applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (genuine temporary entrant criterion) could not be met.
On 5 August 2019, the applicants sought review of the Delegate’s decision by the Tribunal.
The applicants attended a hearing before the Tribunal on 9 March 2021.
On 19 April 2021, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii)if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the Applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Act. Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the Applicant’s circumstances in her home country, potential circumstances in Australia and the value of the course to her future;
(b)the Applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, including the criterion in issue and the evidence before it at [1]-[42] of its decision.
The Tribunal considered the Applicant’s circumstances in her home country at [44] and [50] of its decision as follows:
44.The Tribunal has considered the applicant’s circumstances in her home country. The applicant is married and is from Nepal. The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. The Tribunal finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the actual or proposed study. While the Tribunal accepts that the applicant may have family ties to Nepal, having regard to the time the applicant has spent in Australia, the presence of her husband and infant in Australia, her husband’s stable employment in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Nepal…
50.The Tribunal has considered the applicant’s economic circumstances in her home country relative to her potential circumstances in Australia. Having regard to the disparity in economic circumstances between Nepal and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Nepal. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes her incentive to return to Nepal.
The Tribunal considered the Applicant’s potential circumstances in Australia and the value of the course to her future at [45]-[48]:
45.The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 4 July 2015 as a holder of a dependent visa consequent upon her husband’s then student visa. The proposed study would extend the applicant’s stay until at least January 2022. The Tribunal considers that the length of the proposed stay and the circumstances in which she applied for her own student visa, being only five days prior to the expiry of her husband’s Subclass 485 visa, after spending several years in Australia as a dependent on her husband’s visas, suggests that the applicant is studying for the purposes of staying in Australia. While plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend her stay in Australia by utilising the student visa programme.
46.The Tribunal does not place significant weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. The applicant has given extremely vague evidence in this regard.
47.The Tribunal observes that this is inconsistent with the applicant’s work plans when she entered Australia. The applicant now wishes to pursue a second vocational course in information technology in Australia. The course is asserted to have relevance to very vague future plans.
48.On balance, the Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career, considering the cost of the study and the fact that the applicant already has a vocational qualification in information technology. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to her career beyond the existing qualifications.
The Tribunal additionally considered “other relevant matters” at [49]-[52]:
49.The Tribunal turns to consider whether there are any other relevant matters. The applicant arrived in Australia as the holder of a visa which was dependent upon her husband’s then student visa. She continued to stay in Australia in circumstances which were dependent upon her husband’s student visa or Subclass 485 visa until 30 April 2019. During this period she did not apply for a student visa in her own name and there is no evidence that she studied in Australia. However, five days before the expiry of her husband’s Subclass 485 visa the applicant decided to apply for a student visa. The relationship between the imminent expiry of her husband’s Subclass 485 visa and the applicant’s apparent desire to study cannot be incidental. The applicant has not explained to the Tribunal’s satisfaction why she did not study in the preceding years and why she decided to apply for a student visa five days before the expiry of her husband’s Subclass 485 visa. These matters are given significant weight…
51.The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from her proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly the Tribunal is not satisfied that the applicant has demonstrated the value of her proposed course of study to her future.
52.The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 4 July 2015 the applicant has spent nearly six years in Australia and only returned to her home country on one occasion which indicates that she does not appear to have strong personal ties to Nepal. On balance, the Tribunal assesses the applicant’s incentive to return to Nepal to be poor.
The Tribunal then reasoned at [53]-[57]:
53.The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. While the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant has, apparently, only decided to do so when facing the imminent expiry of her husband’s Subclass 485 visa. The applicant lodged this application five days prior to expiry of that visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
54.The Tribunal has considered all information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
55.On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.
56.There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in Nepal; political or civil unrest circumstances in Nepal; remuneration the applicant could expect to receive in Nepal or a third country compared with Australia; circumstances in Nepal relative to Australia or any other country; and the applicant’s circumstances in Nepal relative to others in that country.
57.On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Having regard to the above, the Tribunal concluded that the applicants were unable to meet the criteria for the granting of the student visas and affirmed the Delegate’s decision (at [58]-[61]).
PROCEEDINGS BEFORE THIS COURT
The applicants commenced the current proceedings through an application filed on 26 May 2021. The applicants ultimately relied upon an amended application filed on 10 November 2021 containing the following 23 grounds:
1.The decision wasn't made as per the law of my understanding that I am not the genuine temporary entrant. That I did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.
2.That the Primary applicant and secondary applicant Mr Bikash Bhujel wasn't allowed to properly explain the grounds of the claims as the officer sounded to be in hurry and didn't properly listen to us (would request to listen the recording of the hearing of the tribunal officer on the date of 09 March 2021).
3.That we meet the genuine temporary entrant criteria set out as per direction 69. Few of the examples are, the family ties and financial tics are strong enough in home country and that I don't work in here since around for 2 years and my family is financing all my expenses during my education (Completed Diploma in Information Technology) from Skyline International College.
4.That the claim of being not apparent between the dates of 485 visa and 500 visa do not satisfy the ground for rejection, as all the applications were made in time and as per the jurisdiction of Australian Immigration Law. I believe, we kept everything clear.
5.That at the time of hearing, I have already completed my Diploma in Information Technology but as per the claim made by officer, I was still studying in those times. But I even submitted them the completion letters at the time of hearing. (The officer has given 2 different statements in this regard, in one, has said, applicant completed study in another said, was studying. This shows the negligence of the officer and any claims made by officer be quashed. That I completed my degree in Diploma in information Technology and certificate was issued on 16 February 2021.
6.Case officer mentioned, I did not disclose the current income statement at the time of hearing, this proves, he didn't ready my documents carefully as l mentioned him, that I am unemployed.
7.That I never said that my spouse (Husband lives in Nepal), that he currently lives in Australia and graduated from Australian Institute as well. This is another proof that the claims made by officer has no intellectual grounds.
8.That, in our culture, we do not personally hold assets in our names, but our parents do and they sponsor us for ever thing and it was clearly mentioned in visa application.
9.That my future plan of running my family-owned business adding Information Technology department contribute to not meeting genuine temporary entrant criteria.
10.That the officer indicated that the claim I made regarding future income generation running my own business and making 5000$-6000$ a month in beginning month is doubtful. We are in the business since around 4 decades, and I believe, the claim is achievable.
11.That we never declined any opportunity to add further things for review. We weren't allowed to speak and explain. Just asked us answer in Yes/No Format.
12.That my spouse (Husband) did not made any claims that he intends to be permanent resident (Please listen to the recording). And second statement made on this point, says, my husband did not say yes to the question of intention of permanent residency and has clearly mentioned that he said "No" on this question. This shows, the officer did not properly understand what he was saying and made his own groundless interpretation.
13.That I did not, refer to the already submitted evidences in the hearing, the officer just didn't allow us to speak properly and asked us to give answers in "Yes" No" format.
14. The representative was withdrawn from the application, and that we self-represented us and the case officer even doesn't know this.
15.That the statement made on point 42 that my husband did Diploma In Business degree, but it wasn't Diploma of Business but rather was Graduate Diploma of Business, this shows that the case officer did not pay enough attention and wasn't serious about my application for review with AAT.
16.That applying student visa prior to 5 days of 485 visa expiry doesn't justify that I do not intend to study and return.
17.That I have been refused to allow to study and obtain Australian degree that significantly contributes in up bringing my future and as a human I have been stopped in creating better future for myself even when Australian degree has high value in my home country.
18.That the officer did not consider that our family financed my husband's study and would finance my studies and necessities, and expressed doubts in my family's financial capacity even when all the relevant documents were submitted.
19.That if my intention if wasn't to study, how would have I completed this complex Information Technology degree which requires enormous effort and technical mind to understand the course.
20.That we have never applied for permanent residency in Australia even when my husband's degree and experience allows us to apply.
21.That the officer's decision do meet the criteria as set out by the laws and regulation of Australian immigration related to student visa application.
22.That during the time of hearing, whole Nepal was in lockdown due to pandemic. Should have advised us accordingly and allowed us bit more time, if have required any other documents.
23.That the officer did not apply the law correctly regarding my Genuine Temporary Entrant while I made student visa application.
Adjournment of the first listed hearing
This matter was originally listed for hearing on 15 August 2023. That hearing was adjourned after it transpired that an interpreter would be required by the applicants and noting that certain grounds of review assumed that an audio of the Tribunal hearing was available to the Court, which had not been placed into evidence.
The hearing audio had been provided to the Court by the time of the second hearing. Although this is not the (sole) format in which the Court would usually wish to have the record of a Tribunal hearing, in the present case it was considered necessary. This is in circumstances where the applicants were unrepresented, they had produced no transcript and yet some of their grounds depended not only upon what was said during the Tribunal hearing, but also upon the manner in which the hearing was conducted (including whether they had been prevented from giving fulsome answers by the conduct of the Tribunal). In these circumstances, and noting the limited duration of the hearing in question, I allowed the hearing audio to be admitted as Exhibit A. The audio was played in Court during the hearing of this matter and the parties were afforded an opportunity to make submissions in relation to it.
Extension of time application
The principles regarding extension of time applications are not in doubt and have been considered in cases such as BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819.
The delay in this matter is limited, with the application to this Court having been made only two days out of time. The explanation given, indicating “[c]onfusions” regarding the form and what the applicants had been advised, is not entirely persuasive. However, no specific prejudice was identified by the Minister. Some of the grounds relied upon raise arguable contentions of error, depending upon the construction of the evidence before the Court. In particular, the applicants’ contentions regarding being inhibited from giving the evidence that they may have given due to the conduct of the hearing before the Tribunal potentially raise an arguable ground of error relating to s 360 of the Act, depending upon the interpretation of the evidence. Various factual errors or misunderstandings contended by the applicants require a similar approach.
On this basis, I am satisfied that it is necessary in the interests of the administration of justice to allow the extension of time.
At the hearing of this matter, I indicated that I was inclined towards granting the extension of time. The parties indicated that they did not wish for a separate hearing to occur in the event that the extension of time was granted. Submissions addressing the substantive grounds of review were made at the hearing by the parties. Those submissions are considered below.
Grounds 1, 21 and 23
Grounds 1, 21 and 23 contended that the Tribunal’s decision was not made according to law.
The grounds were unparticularised, other than by their relationship to the other grounds that are considered below.
The Tribunal appears to have correctly understood and applied the criterion in issue, namely, cl 500.212(a) of Schedule 2 to the Regulations. That provision was accurately set out in [7] of the Tribunal’s decision. The associated requirements of Direction No. 69 were accurately summarised at [8]-[9] of the Tribunal’s decision. The Tribunal then applied these requirements by assessing the Applicant’s circumstances in her home country (at [44] and [50]), the Applicant’s circumstances in Australia (at [45], [50] and [52]), the value of the course to the Applicant’s future (at [46]-[48] and [51]), before reaching its conclusions at [53]-[60].
I am unable to perceive any legal error in this approach and none has been demonstrated by the applicants.
For the above reasons, grounds 1, 21 and 23 are unable to succeed.
Grounds 2 and 11 to 13
Ground 2 and 11 to 13 concerned what occurred at the Tribunal hearing. The applicants contended under grounds 2, 11 and 13 that they were not allowed to explain the grounds of their claims as the Tribunal Member “sounded to be in a hurry”, would not listen to them properly, and required that they answer in “Yes” or “No” format.
I have listened to the recording of the hearing. I accept that the tone used by the Tribunal Member during the hearing may at times have indicated a level of impatience on the part of the Member. This was particularly so when addressing attempts by the second applicant to address the Tribunal in response to questions directed to his wife (the Applicant), and when the Member appears to have considered that the Applicant’s answers were not responsive to the questions asked. Some interruptions also appear to have been made by the Member, in what may be described as a forceful tone, which appear to have been for the purposes of focusing or clarifying answers given.
At around 7:03 of the audio, the Member commented that the hearing was “going to take a lot longer” if the Applicant could not hear the questions. However, this was within the context, and therefore appears to have been for the purpose, of encouraging the Applicant to move in order to ensure that she could hear what was being said by the Member.
I have some disquiet regarding the tone that was used at times during the Tribunal hearing. Overall, however, I am not persuaded on the evidence that the conduct of the hearing before the Tribunal is capable of rising to a level demonstrating any material, legally recognisable error on the part of the Tribunal. Importantly, as was observed by the Minister, the Member invited the applicants in general terms to say what they wished to say apart from the questions that the Member had asked. Whilst the Member initially interrupted the Applicant’s response, this appears to have been on account of the Applicant repeating evidence associated with the last question that had been asked, which the Member may have thought indicated some misunderstanding of the general opportunity to provide further evidence. In any event, the Applicant was again asked in general terms if there was anything else she wanted to say and she gave further evidence in response.
At the hearing before the Court, the applicants contended that there was a part of the Tribunal hearing audio that was missing in which the second applicant had a heated argument with the Tribunal Member. This is not apparent on the recording before the Court, which appears to begin and end with a Tribunal officer (not the Member) noting the commencement and the conclusion of the hearing. I observed that there was no evidence of the contended exchange. I also explained that even if such an exchange occurred and was not reflected in the recording of the Tribunal hearing, then I would still need to understand how this was capable of demonstrating some legally relevant error on the part of the Tribunal.
I informed the applicants that they could seek to give oral evidence of what they said had occurred. If this were permitted, then the Minister’s Counsel would be permitted to cross-examine or ask them questions about such evidence. Initially, the Applicant stated that she wished to provide such oral evidence. The applicants subsequently suggested that only the second applicant would give evidence. In response to this, I noted the possibility that if only one of the applicants gave evidence, then the Minister may (or may not) make a submission that the other’s evidence would not have assisted their case.
Ultimately, the applicants decided not to seek to provide oral evidence of what they said had occurred during the hearing, in the absence of supporting evidence of what they said had occurred. I noted that if they did not give such evidence, then I would be unable to find that the heated argument they had described had happened. In any event, it is not clear exactly how the exchange that was generally described at the hearing before the Court, or its absence from the recording, could be said to demonstrate any material, legally actionable error in relation to the Tribunal’s decision.
Ground 11 further contended that the applicants did not decline an opportunity to add further information, as considered at [35] of the Tribunal’s decision. The Tribunal’s statement in this regard followed its summary of the evidence that the Applicant had given at the hearing before the Tribunal. The Tribunal did, after providing an opportunity for the Applicant to give further evidence (which was taken), ask towards the conclusion of her evidence whether there was anything further that she wished to say, to which she responded in the negative. I am therefore not persuaded that any relevant error has been demonstrated under this ground.
Ground 12 contended that the second applicant at the Tribunal hearing never claimed that he intended to become a permanent resident and answered “no” to this question. This may be accepted from what was said during the Tribunal hearing, although there was some initial equivocation before this answer was provided. The applicants have not demonstrated any material error in relation to [39] of the Tribunal’s decision, which summarised the exchanges that occurred at the Tribunal hearing in this regard.
Grounds 3, 4, 9, 10, 16, 17, 19 and 20
Grounds 3, 4, 9, 10, 16, 17, 19 and 20 disputed various aspects of the Tribunal’s reasoning in relation to its finding that the Applicant did not meet the genuine temporary entrant criterion.
Ground 3 contended that the Applicant met the criterion, noting her ties to her home country, her lack of employment in Australia and the financial support that she received from her family. Ground 4 contended that the dates regarding her 485 and 500 visas did not satisfy a ground for rejection, as the Applicant had made those applications within time and according to law. Ground 9 appeared to dispute that the Applicant’s evidence of her future plans of running a family-owned business ought to have contributed to the findings against her. Ground 10 disputed any doubt regarding her ability to achieve her future income projections. Ground 16 contended that the timing of the Applicant’s student visa application (5 days prior to the 485 visa expiry) did not justify the Tribunal’s findings. Ground 17 contended that the Australian degree had “high value” in the Applicant’s country and that she had been prevented from creating a better future. Ground 19 contended that the Applicant would not have completed her complex Information Technology degree if her intention wasn’t to study. Ground 20 submitted that the Applicant and her husband had never applied for permanent residency, despite being able to do so.
I accept the Minister’s submission that none of these grounds are capable of demonstrating jurisdictional error. As I sought to explain at the hearing, this Court has no power to overturn the Tribunal’s decision based upon disagreement alone. Provided that the Tribunal’s reasoning was logically and legally open to it, its decision is not susceptible to intervention by this Court.
It has not been demonstrated that the Tribunal’s reasoning in this regard was relevantly closed to the Tribunal. The Tribunal was under no obligation to find that the criterion was met, by reference to the Applicant’s ties to Nepal, limited ties in Australia, successful completion of courses and/or plans for the future. It was open to the Tribunal to have had concerns regarding the Applicant’s immigration history and the timing of her student visa application. It is not apparent that the applicants placed any detailed evidence before the Tribunal to the effect that they could have qualified for permanent residency. Even if the Applicant intended to study, the criterion in issue required the Tribunal to be satisfied that the Applicant intended genuinely to stay in Australia temporarily. The Tribunal was not persuaded of this for the reasons that it gave and which are summarised above. It has not been demonstrated that this reasoning was closed to the Tribunal.
Grounds 5 to 7, 14 and 15
Grounds 5 to 7, 14 and 15 took issue with a number of further aspects of the Tribunal’s reasoning.
Ground 5 contended that the Applicant had completed her Diploma in Information Technology at the time of the Tribunal hearing. The Tribunal is said to have made inconsistent statements in this regard; firstly that the Applicant was studying, and secondly, that she had completed her study. However, the reference to the Applicant’s studying of this course appears to have been at [17] of the Tribunal’s decision, within the context of referring to the Applicant’s visa application. The Tribunal referred to the course having had a scheduled completion date in August 2020 (which was prior to the date of the Tribunal hearing, even if it was completed at another time between the scheduled date and the Tribunal hearing). The Tribunal’s findings at [30] and [42] evidenced an understanding on the part of the Tribunal that this course had been completed. Therefore, even if there was some error on the part of the Tribunal in the expressions it used in [17], I am not persuaded that this was material to the Tribunal’s decision.
Ground 6 took issue with the Tribunal’s consideration that the Applicant had not disclosed her current income statement at the time of the hearing, notwithstanding her evidence that she was unemployed. The Tribunal at [18] did refer to evidence that the Applicant was said to have given regarding “current” employment in respect of which it was said that she had not provided income details. The source of this was not clearly identified, although it appears to accord with information provided in a written response to a request for information (CB 182). In any event, the Tribunal went on to summarise the Applicant’s subsequent evidence at hearing that she was unemployed and that she did not have an income (at [32]) and (at [42]). The Tribunal therefore appears to have understood the Applicant’s evidence that she was not employed by the time of the hearing. It is not apparent that any material error in this regard affected the Tribunal’s decision.
Ground 7 contended that the Applicant never said that her husband lived in Nepal, as considered at [19] of the Tribunal’s decision. Attention was not specifically drawn to evidence of the Applicant stating that her husband was living in Nepal, other than by reference to this being his home country. It may be that [19] was a reference to his general residence in Nepal stated in a written response to a request for information (CB 183). In any event, the balance of the evidence before the Tribunal, which was considered, gave various information regarding the second applicant’s time in Australia. It is therefore not apparent that the Tribunal’s remarks at [19] had any material bearing upon its decision. The Tribunal was plainly aware that the second applicant was in Australia. The fact that he was living in Australia was acknowledged at [42] of the Tribunal’s decision. I am therefore not persuaded that any error at [19] of the Tribunal’s decision is capable of demonstrating jurisdictional error.
Ground 14 contended that the “case officer” did not “even” know that their representative had withdrawn from the application. The applicants had informed the Tribunal that they were withdrawing their agent’s representation (at CB 212). The Tribunal appears to have thereafter corresponded with the applicants directly. At [41], the Tribunal observed that the applicants’ “representative” had not attended the hearing but had provided written submissions prior to this dated 28 May 2020. Whilst it may have been more accurate or precise for the Tribunal to have referred to the applicants’ former representative in this paragraph, I am not of the view that the paragraph is necessarily inconsistent with what had occurred. In any event, there is no indication that any misunderstanding in this regard had any material effect upon the Tribunal’s decision.
Ground 15 contended that the Tribunal made a mistake at [42] of its decision where it stated that the second applicant completed a Diploma of Business Degree, when in fact it was a Graduate Diploma of Business. The Tribunal acknowledged at [36] of its decision that the second applicant had given evidence that he had completed a Graduate Diploma of Business. Whilst the Tribunal at [42] simply referred to a “Diploma of Business”, is not apparent that anything turned on this distinction within the context of the decision or that the Tribunal misunderstood the second applicant’s evidence in this regard (as opposed to having reflected a truncated version of the stated qualification at [42] whether by reason of typographical error, or “shorthand” as was suggested by the Minister). In any event, I am not satisfied that this demonstrates any material, legally relevant error in the reasoning of the Tribunal.
Grounds 8 and 18
Ground 8 contended that in the applicants’ culture, they do not personally hold assets in their names, but that their parents held the assets and sponsored them. This was said to have been mentioned in the visa application. I was not taken to any written evidence where the applicants contended that the family asset situation was for cultural reasons, although I accept that this was suggested in the Applicant’s oral evidence given at the Tribunal hearing. Relatedly, ground 18 contended that the Tribunal did not consider the family’s financing of their studies and had expressed doubts even after relevant documents had been submitted.
The Tribunal did not make any express findings regarding whether the second applicant’s parents were sponsoring the study. However, this does not appear to have been doubted by the Tribunal. The Tribunal did not cavil with the fact that the study was being financed. Rather, the Tribunal’s concerns appear to have centred around the timing of the Applicant’s enrolment, its lack of persuasion that regarding the value of the course to her future and the Applicant’s ties to Australia, including the amount of time that she had resided there with only one return visit to Nepal.
There was evidence before the Tribunal regarding family businesses and assets. That evidence included evidence that a family business was registered under the second applicant’s name. The assets otherwise appear to have been managed through other family members, such as the husband’s parents. At the hearing before the Tribunal, the Applicant confirmed that no assets were held in her name and that they were all held by other members of her husband’s family.
The Tribunal did not refer in precise detail to every aspect of the evidence that was before it regarding the assets held by the second applicant’s family. However, the Tribunal did refer to a number of details regarding the family assets, including the family businesses (at [13], [32], [36], [42], [44] and [52]). At [44], the Tribunal appears to have acknowledged that evidence of financial ties had been provided, although the Applicant’s ties to Australia, non-demonstration of substantial personal assets (presumably in her own name) in Nepal, and limited time spent in Nepal over a number of years of residing in Australia were considered to weigh against her ability to meet the genuine temporary entrant criterion (at [44]-[52]).
Having regard to the above, I accept the Minister’s submission that there is insufficient basis for finding that the Applicant’s evidence regarding the family’s assets was overlooked or misunderstood by the Tribunal. I accept that it was open to the Tribunal, notwithstanding her evidence regarding the family’s assets, to have found at [50] that the Applicant had not individually demonstrated substantial personal assets in Nepal, and that this was capable of affecting her incentives for return there.
Ground 22
Ground 22 stated that Nepal was in lockdown due to the pandemic and that the Tribunal should have “advised” accordingly and allowed more time if it required additional documents.
The Tribunal was not under any obligation to advise the applicants regarding the situation in Nepal in relation to the pandemic. The Tribunal did invite the applicants to provide information and evidence relevant to the Applicant’s ability to meet the genuine temporary entrant criterion, both in writing and at the Tribunal hearing. The applicants responded by providing the documents and other evidence that they wished to rely upon in this regard.
The applicants do not appear to have sought additional time beyond the time that was afforded by the Tribunal to provide documents, whether by reference to the pandemic or otherwise. Whilst there was some reference in their former representatives’ submissions dated 28 May 2020 to being unable to provide certain documents at that time due to the pandemic, no specific further period was sought in which to provide additional evidence.
In an email dated 1 February 2021, the applicants had generally asked for an “extension submitting results” or to else to “produce a transcript on hearing day” regarding an official college transcript that had been unable to be issued in time. At the subsequent Tribunal hearing on 9 March 2021, the Applicant stated that she had not been able to submit her “attendance report” and that she wanted to do so “if required”. She asked if the Member wanted this and the Member responded, not inaccurately, that it was a matter for her as to what documents she wished to provide. Ultimately, the Applicant did not specifically request any further period of time in which to submit this or any other documents. In the absence of such a request, I do not consider that the Tribunal behaved unreasonably in not affording additional time in which to allow documents to be submitted.
CONCLUSION
For the above reasons, although I consider that the extension of time should be granted, as no jurisdictional error has ultimately been found in relation to the Tribunal’s decision I am otherwise required to dismiss the application that is before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 19 January 2024
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