DHAKAL v Minister for Immigration
[2020] FCCA 3295
•11 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHAKAL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3295 |
| Catchwords: MIGRATION – Application for Student Visa – finding by Tribunal that the applicants did not intend to genuinely stay in Australia only temporarily – no jurisdictional error established – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), cl.500.212. |
| Cases cited: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863. Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593. |
| First Applicant: | RAMBABU DHAKAL |
| Second Applicant: | LAXMI PANDEY |
| First Respondent: | MINISER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFARS |
| First Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 221 of 2020 |
| Judgment of: | Judge Egan |
| Hearing date: | 3 December 2020 |
| Date of Last Submission: | 3 December 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 11 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rebetzke |
| Solicitors for the Applicant: | Armstrong Lawyers |
| Solicitors for the First Respondent: | Ms Allen of Sparke Helmore |
| Second Respondent | Submitting appearance save as to costs |
ORDERS
The Originating Application for Review filed on 14 April 2020 be dismissed.
The Applicants’ pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $6,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 221 of 2020
| RAMBABU DHAKAL |
First Applicant
| LAXMI PANDEY |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Nepal who arrived in Australia on 24 May 2015. The first applicant was then the holder of a Subclass 457 Visa. The first applicant was, in respect of the subject application, the primary visa applicant, and the second applicant was included in the visa application as a dependent wife.
The first applicant applied for the subject Student (Temporary) (Class TU) Subclass 500 Visa on 27 July 2018 based upon his enrolment in a Graduate Diploma of Management Course which commenced on 16 July 2018, and which was then due to conclude on 26 June 2019. The first applicant completed such course and was awarded the Graduate Diploma.
On 22 August 2018, a delegate to the Minister refused to grant the visa sought by the first applicant on the basis that he did not meet the relevant criteria under cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 500.212 relevantly 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.”
On 5 September 2018, the applicants applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
On 21 August 2019, the first applicant was invited to provide information confirming his enrolment in a registered course, as well as information confirming that he was a genuine applicant for entry and stay as a student. The first applicant provided information on 27 August 2019.
On 13 September 2019, the applicants were invited to attend a hearing scheduled for 17 October 2019.
On 10 October 2019, the first applicant provided a statement addressing the genuine temporary entrant criteria. He also sent confirmation of enrolment for a Master of Business Administration Course and Master of Professional Accounting Course, the latter course then being due to commence on 22 March 2021 and conclude on 15 July 2021.
On 17 October 2019, the first applicant appeared before the Tribunal with the assistance of his representative migration agent who appeared by telephone.
On 12 March 2020, the Tribunal affirmed the delegate’s decision to not grant the visa to the first applicant.
On 14 April 2020, the applicants’ lawyers filed an Originating Application for Review. At the hearing before the Court, the grounds relied upon by the applicants were as follows:
“Grounds of application
1. Contrary to s 499 of the Migration Act 1958, the Second Respondent (‘Tribunal’) erred in failing to comply with a written direction given by the Minister about the performance of the Tribunal’s functions or exercise of power to review the delegate’s decision, namely Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications, by:
(1) Failing to consider the value of the course he was enrolled in to his future as required under Direction 69 (and instead considering the more restrictive question whether it was necessary for the applicant to attain the qualification to which the course leads in order to benefit from his qualifications in his home country);
(2) Failing to allow for reasonable changes to career or study pathways in a consideration of the value of the course to the applicant’s future;
(3) Failing to give genuine and proper consideration, or at all, to the applicant’s immigration history, that is, his visa (bridging visa E and visa cancellation) and travel history;
(4) Failing to have regard to other relevant information provided by the applicant or otherwise available to the Tribunal including:
(a) his demonstrated academic progress;(b) his ties to his home country including that majority of his member family still resides in his home country and obliged by cultural reasons to return to his home country;
(c) his minimum ties to Australia; and
(d) whether he intended 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 him; and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject;
2. The Tribunal misconstrued or misapplied the criteria in Regulation 500.212(a) by:
(1) Failing to give genuine and proper consideration, or at all, to the applicant’s immigration history as required by clause 500.212(a)(ii);
(2) Failing to give genuine and proper consideration, or at all, to other relevant matters as required by clause 500.212(a)(iv), including:
(a) his demonstrated academic progress;(b) his ties to his home country including that majority of his member family still resides in his home country and obliged by cultural reasons to return to his home country;
(c) his minimum ties to Australia; and
(d) whether the applicant intended 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 him; and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject;
3. The decision of the Tribunal was legally unreasonable.”
Consideration by Tribunal of Applicants’ Claims
At [9] of its reasons, the Tribunal recorded that in considering whether the first applicant satisfied cl. 500.212(a) of Schedule 2 to the Regulations, the Tribunal must also have regard to the contents of Ministerial Direction No. 69 in so far as such direction related to its undertaking an assessment as to genuine temporary entrant criterion. In that regard, paragraphs [11] and [12] of Direction No. 69 were as follows:
“11. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
(a) The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
(b) evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
(c) whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
(d) whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
(e) the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
(a) whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
(b) relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
(c) remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.”
At [10] of its reasons, the Tribunal recorded that the factors / criterion set out in Direction No. 69 were intended only as a guide to decision makers and should not be used as a checklist.
At [11] of its reasons, the Tribunal recorded that it had had regard to the information supplied to the Department with the visa application, as well as to the written submissions received by the Tribunal on 10 October 2019, and all other information supplied to the Tribunal by the applicants.
At [14] of its reasons, the Tribunal summarised the applicant’s circumstances as follows:
“(a) The applicant is a 30-year-old citizen of Nepal who first arrived in Australia on 24 May 2015.
(b) The applicant has links in his home country in the form of his father, mother, one brother and two sisters. His parents are retired while his siblings are working. He keeps in regular weekly contact with his family through telephone and social media applications.
(c) The applicant says his family are upper-middle class and to date have had the wherewithal the support him, particular in respect to his studies and living in Australia. The family do own property in Nepal but the applicant himself does not at this stage.
(d) The applicant indicated in evidence that he has no concerns in respect to requirements for military service commitments or for political and civil unrest in the area of Nepal where his family lives.
(e) In Australia, the applicant lives with his wife, the secondary applicant, whom he married during his only return visit to Nepal in December 2015. Otherwise, there is a circle of college and work friends that he has over the years socialised with.
(f) Moreover, the applicant has worked in Australia, initially under a Subclass 457 visa where he worked full-time as a restaurant manager, firstly in Melbourne and then on the Gold Coast at a restaurant owned and operated by his brother who now has Australian citizenship.
(g) It appears that during the course of employment with his brother, an application was made for a Subclass 186 visa. The applicant indicated that that application did not proceed. Although the applicant did not admit to it, it seems there has been a falling out between the applicant and his brother in relation to the business and the applicant resigned from the business. The applicant put this terms of fact that the business was not doing very well.
(h) After resigning from the business, known as the Surf and Turf Restaurant on the Gold Coast, the applicant has had casual work as a cleaner and kitchenhand. He says he is otherwise spending the majority of his time studying.
(i) The applicant has family support to meet the costs of living and studying in Australia supplemented by his savings and work over the years.
(j) Prior to coming to Australia, the applicant had completed his secondary education and then for a period from mid-2007 to mid-2014 he had worked in Dubai in the United Arab Emirates in upmarket international hotels working his way up from housekeeping attendant and waiter through to assistant outlet manager.
(k) The applicant then came to Australia to work in a restaurant in Melbourne as noted, on a Subclass 457 visa. He then moved to the Gold Coast to work with his brother in the Surf and Turf Restaurant, however that did not work out and he resigned, and his Subclass 457 visa was cancelled. He then applied for a student visa which was refused but under the current situation of his bridging visa he has been pursuing his studies.
(l) The studies that the applicant has been undertaking in Australia were firstly to obtain through the Management Institute of Australia an Advanced Diploma of Hospitality which the applicant was able to convince the institution that he had the requisite skills, knowledge and attitudes and so was granted the Advanced Diploma on the basis of Recognition of Prior Learning (RPL). Since that time, the applicant has completed a Graduate Diploma of Management (Learning) which he undertook in the period July 2018 to June 2019 and, at hearing, was enrolled at the Holmes Institute undertaking combined Master of Business Administration/Master of Professional Accounting Degree. The MBA part was being undertaken in the period July 2019 to November 2020 and the MPA part would be undertaken in the period March 2021to July 2021.
(m) In regard to the applicant's future intentions, the applicant indicated that he wished to return to Nepal and open his own hotel. As noted, he provided a generic draft business plan for that business, the Hotel Munte. The plan was not terribly well advanced, and no particulars were included other than general generic type statements as to the intention of the business and the likely scope of service offerings at the business.
(n) The applicant indicated it was his intention to open that business even if the review went against him and he was not able to complete his Master's level studies.
(o) In relation to remuneration, the applicant indicated he could not really compare what remuneration he would receive in Australia for similar work as he had not researched that as opposed to remuneration for his business in Nepal. The applicant indicated he felt he would be better placed as the owner operator of a business in Nepal then he would be able to achieve in Australia.
(p) Based on the information supplied by the applicant to the Tribunal in his completed Information form, since his arrival in Australia on 24 May 2015 he had departed on only one occasion for approximately 10 days in December 2015 during which time he married his wife, the secondary applicant.
(q) The applicant gave sufficient evidence of his knowledge of living in Australia and his associated education provider, however he was somewhat vague and non-specific as to the nature of his studies, particularly as regard the MPA studies.
(r) As to previous visas, the applicant indicated that he had been granted a Subclass 457 visa which was cancelled and he had applied for a Subclass 186 visa, which application did not proceed when he ceased employment with his brother. The other visa that the applicant had applied for was the student visa which is the subject of this review.
(s) The applicant advised that he had complied with the conditions of his visa.
(t) The applicant gave evidence that his travels only involved travel between Nepal and Australia (any other countries were only transit destinations) and he had not otherwise visited any other countries.
(u) Apart from dealing with the issues of concern and explaining his study situation in greater detail and his general statement of intention which will be discussed later in these reasons, the applicant did not suggest there were, or give evidence concerning, any other matters which may relate to his genuine temporary entrant status in Australia.”
At [15] – [23] inclusive of its reasons, the Tribunal analysed the matters of factual substance before it, eliciting from the first applicant answers to the Tribunal’s expressed concerns about:
a)How it was that despite his having entered Australia on a Subclass 457 Visa, which was cancelled after a falling out with his brother, the first applicant had nevertheless stated in evidence before the Tribunal that it had always been his intention to study in Australia.
b)Why the first applicant needed further academic qualifications when he already had sufficient hands-on qualifications to fulfil a managerial role due to his long period of actual experience working in upmarket international hotels between mid-2007 – mid-2014 in Dubai, as well as his qualifications obtained through an RPL (Recognition of Prior Learning) which resulted in his being awarded an Advanced Diploma of Hospitality before the commencement of his current courses.
c)Why the first applicant needed an MPA (Master of Professional Accounting) degree over and above a MBA (Master of Business Administration) degree.
d)Why the first applicant had only returned home to Nepal on one occasion for ten (10) days since his arrival in Australia in May 2015.
e)Whether the first applicant’s commencement of study after the cancellation of the Subclass 457 visa was a means of ensuring that he and his wife would remain in Australia on bridging visas.
The Tribunal noted that in response to its queries, the first applicant was on one occasion unable to provide any specific answer ([21] of reasons), and on another occasion was unable to provide any answer ([22] of reasons).
At [24] and [25] of its reasons, the Tribunal noted that it had to assess whether the first applicant intended genuinely to stay in Australia only temporarily by reference to cl. 500.212 of Schedule 2 to the Regulations and by reference to Direction No. 69.
At [26] of its reasons the Tribunal explained how it had considered all of the relevant factors as set out in Direction No. 69, finding that some were of greater significance and importance than others for the purpose of it arriving at its decision. The Tribunal did not err in doing so.
At [27] of its reasons, the Tribunal made the following findings:
“[27] Having had regard to the applicant's evidence and submissions and his responses to the possible concerns raised by the Tribunal, as summarised above, and giving consideration to all the factors specified in Direction No.69 the Tribunal makes the following findings:
(a) The Tribunal has overall concerns as to the explanations given by the applicant for studying in Australia. It notes that when the applicant came it was for work purposes and notwithstanding he could have studied during the time he had the Subclass 457 visa he did not do so. Instead, he concentrated on working and when that situation came to an end he was faced with a dilemma. In this regard, the Tribunal is of the view that there was a falling out between the applicant and his brother over the operation of the business, Surf and Turf Restaurant. When questioned as to the relationship the applicant had with his brother, he said he had not been in contact with him since last year. At that time the applicant resigned from the business ostensibly because it was not progressing satisfactorily. The Tribunal finds the lack of contact the applicant has had with his brother since that time is more attributable to a falling out than the mere fact that each of them have been busy as the applicant suggested. Faced with problems of an ability thereafter to remain in Australia, the applicant then undertook studies which will now see him remain in Australia to mid-2021 if he is permitted to complete those studies. This is coupled with the factor of the actual necessity for such studies in the circumstances where the applicant will be running his own business, more of which will be considered later. For these reasons, the Tribunal finds that the conduct of the applicant points more to reasons permitting continued residence in Australia than for the genuine purposes of studying in Australia temporarily.
(b) The applicant has links in his home country in the form of his father, mother, two sisters and one brother. However, the applicant's conduct in remaining in Australia with only one visit of approximately 10 days in approximately four and a half years since initial arrival in Australia, the ability he has to remain living and working in Australia with appropriate support, the fact that his wife is here with him working and the fact that his brother moved to Australia and was sponsored in a similar way through working, as the applicant had initially tried to do, all lead the Tribunal to the conclusion the applicant has made a life for himself here in Australia and there is not a significant incentive for the applicant to return to his home country.
(c) As to economic circumstances in the applicant's home country, the Tribunal notes that the applicant has no assets there but does have family who have been supporting him. As a result, the Tribunal is not prepared to find that economic circumstances of the applicant in his home country would present as a significant incentive for him not to return to his home country.
(d) There are no requirements for military service commitments affecting the applicant which would present a significant incentive for him not to return to his home country.
(e) There are no circumstances of political and civil unrest in the area the applicant's family are located in his home country which would present a significant incentive for him not to return to his home country.
(f) In considering the circumstances in his home country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from an upper-middle class family but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.
(g) The applicant has ties in Australia, most notably his wife and the wherewithal for him to remain in Australia with support and with the intention of extending his time in Australia by reason of study to at least mid-2021in circumstances where, if the applicant truly did wish to come to Australia for genuine study purposes only, the Tribunal finds that he could have so arranged his affairs to study earlier and considers the undertaking of studies was precipitated only by the falling out with the working arrangements with his brother such that the Tribunal considers these factors present a strong incentive for the applicant to remain in Australia.
(h) The Tribunal notes the applicant's stated intention to return to open his own business and notes the evidence that the applicant would do so irrespective of whether he gained his qualifications or not and the fact that the business plan is only in draft at this stage with scant detail and would be to cover a situation in over 18 months' time after hearing, all lead the Tribunal to place little weight on these factors put forward by the applicant. When this is put alongside the applicant's brother's circumstances for coming to Australia and the fact that the Tribunal does not consider the applicant has convincingly set out the reasons why he must have those studies and in circumstances where he could not articulate the knowledge he would gain from extending his time in doing his extra studies in relation to the MPA, all lead the Tribunal to the conclusion that the use of the student visa is designed to circumvent the intentions of the migration program.
(i) For similar reasons, the Tribunal considers the student visa as being used to maintain ongoing residence in Australia.
(j) As the secondary applicant is not a citizen of Australia and the applicant does not therefore benefit from being in that relationship, the Tribunal is not prepared to find that their relationship has been contrived for a successful student visa outcome.
(k) While the applicant has demonstrated adequate knowledge of living in Australia and his associated education provider, the Tribunal is not satisfied that the applicant could clearly articulate the particular skills, knowledge and attitudes that he would gain from his studies that were essential to him to enable him to fulfil the intentions he had expressed of running his own business in Nepal.
(l) For reasons already expressed concerning the necessity of studies in light of the applicant's stated intention to run his own business and the fact that he would not need to compete with other candidates for that position, and the fact that the stated reasons for studying the MPA were not able to be satisfactorily explained by the applicant, and the fact that the suggestion that he needed the Australian studies in case his business did not work out (which the Tribunal considers was only an afterthought at the end of the applicant's evidence and on which the Tribunal places little weight), all lead the Tribunal to place little weight on the applicant's suggestions that his studies will assist him to obtain employment or improve his employment prospects in his home country.
(m) Given the applicant's extensive experience in the hotel industry, his existing qualifications in the form of his Advanced Diploma in Hospitality and his Graduate Diploma of Management (Learning) and to a certain extent the knowledge he will have gained in the course of undertaking his current studies (which the Tribunal considers are not strictly necessary) but which nonetheless the applicant has undertaken while awaiting for the review hearing, again leads the Tribunal to place little weight on the relevance of that study in respect of the applicant's proposed employment in his home country.
(n) In relation to remuneration, the Tribunal notes that no evidence has been presented as to similar earnings in Australia and accordingly, has no evidence to compare with the earnings the applicant considers he will receive in running his own business and as such, the Tribunal can only make a neutral finding in this regard.
(o) At hearing, the applicant had been in Australia for approximately four and a half years during which time he had returned to his home country on only one occasion for approximately 10 days. Were he to remain to the conclusion of his proposed studies, the applicant will have been in Australia for approximately a little over six years.
(p) As to previous visa applications, in addition to the current visa application under review, the applicant had previously been granted a Subclass 457 visa and had applied for a Subclass 186 visa. In relation to those visas, the current visa application has been refused and the Subclass 457 visa was cancelled.
(q) There is no evidence before the Tribunal, however, that apart from the circumstances giving rise to the cancellation of the Subclass 457 visa, that the applicant has otherwise failed to comply with his visa conditions.
(r) There is no evidence before the Tribunal that the applicant has travelled to countries other than Australia and his home country which makes it unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of any other country.
(s) As noted, were the applicant to remain in Australia to the completion of his proposed studies he will have been in Australia for a little over six years. This will be in circumstances where the Tribunal is concerned as to the reason for his studies and, as noted, the little amount of weight the Tribunal places upon the evidence in relation to the applicant's intentions with respect to study and returning to work in his home country. All this leads the Tribunal to the conclusion that the use of the applicant's student visa is primarily for the maintenance of ongoing residence in Australia.
(t) As there is no child secondary applicant, it is unnecessary for the Tribunal to make any findings in respect of the intention of the applicant as a parent.
(u) There are no other relevant matters that bear upon the conduct of the review as to the applicant's status as a genuine temporary entrant.”
After having weighed up all of the evidence before it, and having made the findings that it did, the Tribunal at [28] of its reasons found that the application for the student visa was being used as a means of maintaining ongoing residence in Australia, and as such, the Tribunal was not satisfied that the first applicant met the requirement under cl. 500.212 that the first applicant intended genuinely to stay in Australia only temporarily.
Grounds for Review
As to Ground 1 of the Originating Application for Review, it was asserted on behalf of the applicants that the Tribunal erred by ignoring relevant material, the proper consideration of which may possibly have caused the Tribunal to reach a different conclusion.
It was firstly asserted that the material in the application for the student visa indicated that the first applicant understood the conditions upon which the student visa would be granted, including that it was of a temporary nature. [1] It was submitted that the Tribunal did not consider the inclusion in such form of a ‘Student Declaration’ which it was submitted was evidence of the applicant’s stated intention to comply with visa conditions, and to thereby only stay temporarily in Australia. When Counsel for the applicant was asked where in the material before the Court there was evidence that the first applicant had affirmed that that was his intention, or where the first applicant had otherwise identified to the Department that such declaration was his, as opposed to a declaration that had been independently prepared by a migration agent without his knowledge, Counsel was unable to assist. The Court does not accept the applicants’ submission made by Counsel on such point.
[1] Court Book (CB) p. 18.
The Tribunal was entitled to evaluate the evidence before it without descending into an analysis of each and every fact. There was no basis for the submission that the Tribunal ignored any of the relevant material before it. A pro forma response given in an application for a student visa in the present circumstances does not necessarily reflect an applicant’s true intentions in respect of cl. 500.212(a), even if a claim based on such response was clearly articulated before the Tribunal.
It is a matter for the decision maker to assess the significance of any such claim in the light of all of the evidence before it. The Court respectfully adopts what was said by Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 at [81] as follows:
“[81] Thirdly, I consider that there are some additional legal principles to be considered in determining whether or not the Tribunal has committed jurisdictional error by failing to evaluate a substantive and clearly articulated submission. They are as follows:
(a) as the High Court stated in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25]):
… The duty imposed upon the Tribunal by the Migration Act is a duty to review.
In my opinion, the duty to review obliges the Tribunal to consider and deal with submissions of substance which are clearly articulated. As noted above, in assessing whether a submission is one of substance it may be relevant to take into account whether it relies upon an established fact, but that is not the only way in which that requirement may be met. Substantiality might also be established by the fact that, for example, a submission has been made in direct response to an important issue which the Tribunal has raised which bears upon the state of the satisfaction which it is required to meet under s 65 of the Act. In my view, that is the case here as the written submissions dated 20 February 2013 were provided in direct response to the Tribunal’s stated concerns regarding the credibility of the extortion claims and the appellant’s ignorance of the CID officer’s identity;
(b) merely because the Tribunal fails to deal with a submission does not necessarily amount to jurisdictional error. Similarly, the Tribunal’s failure to ignore relevant evidence or other material does not necessarily establish jurisdictional error (see the pertinent observations of Robertson J in SZRKT at [97]);
(c) there is no requirement for the Tribunal to refer to every piece of evidence or every contention made by an applicant in its statement of reasons because it may be that some evidence is irrelevant and some contentions may be misconceived. However, as the Full Court held in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]:
… there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason….
(d) there is a long line of authority which deals with requirements of s 430 of the Act and the circumstances in which a failure by the Tribunal to refer to particular evidence or make a particular finding such as to give rise to jurisdictional error can be inferred from the absence of any reference to those matters in the Tribunal’s statement of reasons (see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [60]-[68] per McHugh J; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [67]-[69] per McHugh, Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZGUR [2011] FCA 1; (2011) 241 CLR 594 at [32] per French CJ and Kiefel J and at [69]-[70] per Gummow J). However, in my view, different considerations may arise in a case where there is a failure to deal with a submission of substance (and not a failure to take into account a relevant consideration, consider evidence or make a finding of fact). As noted above, s 430 does not explicitly require the Tribunal to set out or summarise submissions which are made to it. Having said that, however, it is clear, as the Minister acknowledged, that a failure to deal with a submission of substance could amount to procedural unfairness. I would add that such an error might also be described as a constructive failure to exercise jurisdiction, noting that the Tribunal’s core statutory task is to conduct a review. In either case, jurisdictional error may be present;
(e) notwithstanding that s 430 does not in its terms impose any obligation on the Tribunal to set out or summarise submissions of substance which are clearly articulated and made to it, in considering whether the Tribunal has in fact failed to consider and determine such a submission, it is appropriate to have regard to the Tribunal’s statement of decision and reasons and, in particular, the manner in which that document describes and deals with submissions made to the Tribunal which it has received. In an appropriate case this might involve a consideration of any part of the Tribunal’s statement of reasons which summarises the submissions it has received, as well as the parts of the Tribunal’s reasons which purport to consider and determine the submissions it has received. Accordingly, it may be appropriate to pay careful attention to the structure of the Tribunal’s reasons;
(f) in SZRKT, in considering whether the Tribunal is obliged to consider a document, Robertson J said, consistently with VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77], that much depends on the circumstances of the case and the nature of the document. Justice Robertson added that relevant factors to be considered where the question is whether there was a failure to consider corroborative evidence, include the cogency of the evidentiary material and also the place of that matter in the assessment of the applicant’s claims. In my view, similar factors are also relevant in considering whether the failure to deal with a submission of substance gives rise to a jurisdictional error (at [112]);
(g) the appellant carries the burden of persuading the Court to draw an inference that the failure to deal with a submission which the Tribunal was obliged to consider amounts to a jurisdictional error (see, for example, MZYTS at [53]); and
(h) it is important not to lose sight of the now well-established principle that the Tribunal’s reasons are not to be approached with an eye keenly attuned to the detection of error (see Wu Shan Liang and also the recent observations of Flick J in Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 61 AAR 531 at [19]-[20] (with whom Katzmann and Wigney JJ relevantly agreed)).”
It was next asserted that the Tribunal had ignored the first applicant’s claim that obtaining a degree in Australia would be beneficial for his career opportunities in his home country. Criticism of the Tribunal was made concerning the Tribunal’s use of the words ‘actual necessity’, ‘must have’ and ‘essential to him’ at [27](a), (h) and (k) of its reasons. There is no merit to such submission. The Tribunal looked at the evidence relating to whether the first applicant was using the visa to maintain his and his wife’s ongoing residence in Australia, and the relevance of the course of study to the first applicant’s proposed future employment (either in his home country or a third country), [2] for the purpose of assessing whether or not the first applicant intended genuinely to stay in Australia only temporarily. Its use of the words above, when making its findings, evidenced its consideration of relevant matters. The Tribunal was alive to the issues of relevance which it had to address. The manner in which the Tribunal expressed itself in its reasons ought not to be scrutinised with an eye too keenly attuned to error. The Court adopts, in that regard, what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
[2] Paragraphs 11(c) and 12(b) of Direction No. 69.
The other claims as set out in paragraph 10 of the applicants’ written submissions filed on 13 November 2020 are similarly without merit. The Court infers that the fact that the Tribunal did not specifically address matters as set out in paragraph 10(d), (e) and (h) of the applicants’ submissions was because the Tribunal was otherwise seized of sufficient information so as to allow it to come to the conclusion which it did, and that it considered such matters as not being matters of sufficient substance to warrant expression in its reasons. The Tribunal considered the applicants’ return to Nepal on only one occasion since 2015 in the context of the first applicant having had an entirely different visa – the Subclass 457 Visa – cancelled prior to the commencement of any study. The Tribunal was entitled to have reservations about the first applicant’s claim that it was always his intention to undertake study in Australia. It was also entitled to have reservations concerning the need for the first applicant to study for an MBA and an MPA in circumstances where the first applicant already had a wealth of experience able to be called upon by him to start up a hotel business in Nepal. The matters said to be ignored were peripheral to the matters of substance which were carefully considered by the Tribunal before it arrived at its decision.
As to Ground 2 of the Originating Application for Review, there is no merit to such ground. The Tribunal did not misconstrue or misapply the relevant cl. 500.212(a) criteria. The Tribunal did have regard to the applicants’ past immigration history, including the cancellation of the first applicant’s Subclass 457 Visa, and the later application for a Subclass 186 Visa. The Tribunal did consider the applicants’ ties to Nepal and to the first applicant’s ties to Australia, particularly the presence in Australia of his brother. The Tribunal did not fail to appropriately consider relevant questions in that regard.
As to Ground 3 of the Originating Application for Review, there is no merit to such ground, un-particularised as it was. An applicant must overcome a high bar to succeed on the grounds of legal unreasonableness.
It has not been demonstrated that the Tribunal’s decision making process was arbitrary, capricious, without common sense or plainly unjust. On the question as to whether something was legally unreasonable or not, the Court respectfully adopts what was said by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] as follows:
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). 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].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(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].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
The applicants had sought to have this Court undertake an impermissible merits review in the light of the Tribunal having made findings which were adverse to the applicants.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. 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. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 11 December 2020
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