Enkhbat v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 308
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Enkhbat v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 308
File number(s): SYG 2814 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 6 March 2025 Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal decision – student visa – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 18 February 2025 Place: Sydney Applicants: The applicants appeared in person Solicitor for the first respondent: Ms J Schultz, Mills Oakley Second respondent: Submitting appearance, save as to costs ORDERS
SYG 2814 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUNKHZAYA ENKHBAT
First Applicant
BAYARMUNKH DELGERMAA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.The application for judicial review is 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 MCCABE:
Ms Munkhzaya Enkhbat, the first applicant in these proceedings, has been studying in Australia since she arrived here from Mongolia in 2018. She entered Australia on a Student (Subclass 500) visa. She was accompanied by her husband, the second applicant. Ms Enkhbat’s studies come on top of a Bachelor of Business Administration and Accounting that she completed in 2014 before she came to this country.
On 10 May 2019, after having lived and studied here for just under a year, Ms Enkhbat applied for a further Student (Temporary) (class TU) Student (subclass 500) visa (the visa). She had enrolled in an English language course, a Certificate IV in Business, and a Diploma and an Advanced Diploma of Leadership and Management. A delegate (the delegate) of the Minister for Immigration, Citizenship and Multicultural Affairs (the minister) was not persuaded the applicant was a genuine temporary entrant and refused to grant the visa. The delegate said Ms Enkhbat had not demonstrated the value of the courses nor had she adequately explained how those courses would advance Ms Enkhbat’s career.
The applicants sought review of the decision in the Administrative Appeals Tribunal (the Tribunal). Following a hearing, the Tribunal affirmed the decision under review on 24 November 2020. The applicants filed an application for judicial review of that decision.
At the hearing before me, Ms Enkhbat – who was unrepresented – endeavoured to explain her criticisms of the Tribunal’s decision. She said she thought the Tribunal had misunderstood aspects of her evidence. She suggested she could provide evidence that would assuage the Tribunal’s concerns. There is a problem with that: as I explained to her, the Court is unable to have regard to new evidence and effectively remake the Tribunal’s decision. She also said the Tribunal made sloppy mistakes in its reasons for decision, and she said there were problems with the way the hearing was conducted.
I am not satisfied the Tribunal’s decision is affected by material jurisdictional error, the sole basis on which I am permitted to interfere with a decision of the Tribunal. The application for judicial review must therefore be dismissed. I explain my reasons below.
BACKGROUND
Ms Enkhbat and her husband are citizens of Mongolia. They have a young son who continues to live there with his grandparents. I was told the son of their marriage visits Australia on holidays.
Between 2015 and 2018, Ms Enkhbat worked in a family business in Mongolia that produces and installs electrical cables and equipment. She retains a financial interest in that business, which is run by her uncle. Letters from the company confirmed her history of employment. The letters (reproduced in the court book at pp 57-58) also say the company was providing financial support to Ms Enkhbat while she undertook overseas studies. The company indicated it planned to appoint Ms Enkhbat as its ‘International Relations Director’ after she graduated and returned so the company could expand its foreign client base.
Ms Enkhbat said her studies (ie, the courses she proposed studying when she applied for the visa) would equip her to undertake a senior management role in the family business upon her return: submission reproduced in the court book at p 38.
The application for a visa is reproduced in the court book. Ms Enkhbat provided documents in support of her application including a ‘statement of purpose’ (reproduced in the court book at pp 36-38) in which she explained why she had chosen the courses in question, and why she chose to study in Australia in particular. All that material was before the delegate when the decision was made on 3 July 2019 to refuse the visa.
The delegate’s decision is reproduced in the court book at pp 87. The delegate rejected the application for a visa after concluding Ms Enkhbat was unable to satisfy the criteria in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Those criteria focus on whether an applicant “intends genuinely to stay in Australia temporarily” having regard to a range of considerations. In making the assessment, the delegate referred to Ministerial Direction No. 69 that directs attention to certain factors that must be considered.
APPLICATION TO THE TRIBUNAL
The applicants sought review of that decision in the Tribunal. Ms Enkhbat provided additional information in support of the review. In particular, she filled out the ‘Request for Student Visa Information’ form. Amongst other things, she said she was unable to study equivalent courses in Mongolia because they were not offered there.
The Tribunal wrote to the applicants on 6 November 2020 to explain it was unable to make a favourable decision on the material before it at the time: court book at p 143. It invited the applicants to attend a hearing on 24 November 2020. The hearing was to be conducted by telephone. The applicant asked for an interpreter and indicated her migration agent would also attend.
Ms Enkhbat told me the Tribunal hearing did not go well. She said the telephone connection was poor and the interpreter – who was part of a three-way conversation between Ms Enkhbat and the Tribunal – had difficulty translating her evidence. (Ms Enkhbat confirmed the agent was present throughout the hearing but the hearing attendant’s notes do not record the agent being on the call: court book at p 160. Ms Enkhbat said her agent sat beside her as she participated in the call.) Ms Enkhbat recalled the interpreter struggling; the interpreter suggested Ms Enkhbat might prefer to answer the Tribunal’s questions herself if she felt comfortable doing so. Ms Enkhbat said the agent intervened at one point with the permission of the member to supplement the translation being provided by the interpreter. Ms Enkhbat said in her submissions before me that she thought the interpreter might not have translated the entirety of her answers. If the interpreter had interpreted her evidence accurately, Ms Enkhbat says she could have made a more persuasive case.
THE TRIBUNAL’S DECISION
The Tribunal’s reasons for decision do not make any mention of difficulties with the interpreter, nor do they mention issues with the connection on the conference call. The statement of reasons commences with a brief discussion of the ‘genuine temporary entrant’ requirement in cl 500.212 of the Regulations. The Tribunal also refers to Direction No. 69. After summarising the applicants’ entry and visa history and Ms Enkhbat’s study history, the Tribunal moved to discuss the evidence in accordance with Direction No. 69.
The Tribunal had regard to Ms Enkhbat’s circumstances in her own country and concluded she failed to adequately explain why she chose to study the courses in question in Australia given the cost and disruption. The Tribunal said the claim that an equivalent course was not available was unpersuasive in the absence of supporting evidence: at [19]. It also concluded Ms Enkhbat’s family ties to Mongolia were not strong even though her young son continued to live there: at [20]. (Ms Enkhbat said she was offended by this finding. She told me at the hearing she took it to be a reflection on her quality as a mother.) The Tribunal also doubted Ms Enkhbat and her husband had strong economic or financial ties to Mongolia that would provide an incentive to return. The fact the family business was providing her with income while she remained in Australia created an incentive to stay: at [21].
The Tribunal also considered the applicants’ potential circumstances in Australia. It noted both applicants lived together in this country. It observed at [23]:
The Tribunal gives significant weight to the fact that the applicant’s spouse is with her in Australia, as a factor that serves as a disincentive for the applicant to return to Nepal. [Emphasis added]
The reference in paragraph [23] to ‘Nepal’ instead of Mongolia was obviously a typographical error, although Ms Enkhbat suggests it was evidence of carelessness that reflected on the integrity of the decision. Ms Enkhbat also noted the Tribunal had misidentified her as a male in [16] of its reasons.
The Tribunal found (at [24]):
The Tribunal considers the applicant’s current enrolment in the context of the revenue that she receives from the family company, her previously obtained qualification and the value of the current enrolment to her potential employment and/or remuneration (discussed below) and concludes that the enrolment in short vocational courses is not for the purpose of educational outcome or career progression. The Tribunal considers that the enrolments are for the primary purpose of extending stay in Australia.
The Tribunal also had regard to the value of the course to Ms Enkhbat’s future. It concluded the proposed courses of study were inconsistent with Ms Enkhbat’s existing education, and found it was unclear how the courses would add value to her career. It held (at [28]):
The Tribunal considers the circumstances in which the proposed study offers no apparent value to the applicant’s future, it is likely that the applicant’s purpose in engaging in further study is to maintain an ongoing residence in Australia.
The Tribunal ultimately concluded Ms Enkhbat had failed to demonstrate she had a genuine intention to remain in Australia temporarily. That meant she did not satisfy the criteria in cl 500.212 of the Regulations. It also meant her husband was unable to satisfy the criteria applicable to a dependent in cl 500.311 of the Regulations.
THE GROUNDS OF REVIEW
Ms Enkhbat was represented by a solicitor when she commenced her application for judicial review. The solicitor withdrew before the hearing. I discussed with Ms Enkhbat the grounds of review that were filed on her behalf. I also had regard to her written submissions which framed the case somewhat differently.
The amended application is dated 5 May 2021. It includes two grounds. The first is misconceived because it focuses on supposed flaws in the delegate’s decision. The delegate’s decision is not before me: these proceedings focus on the Tribunal’s decision. That ground must fail.
The second ground is worded confusingly. It contends the Tribunal failed to consider relevant information “including that she has who is offshore”. Ms Enkhbat was unable to say what the author of this ground meant by the claim. I note the second ground goes on to refer to “other significant issues” including the reference in [23] of the reasons to Ms Enkhbat being from Nepal, and “failing to provide another interpreter when the applicant had clearly voiced that she could not understand or communicate with the interpreter”.
THE TRIBUNAL’S TYPOGRAPHICAL ERRORS
Ms Enkhbat addressed the Tribunal’s reference to Nepal (and the apparent confusion over her gender in [16] of the reasons) in her written submissions. It was apparent from those submissions – and confirmed in her remarks at the hearing – that Ms Enkhbat was not arguing the Tribunal was genuinely confused about her country of origin. It is clear from a fair reading of the reasons as a whole that the Tribunal knew it was talking about someone from Mongolia, not Nepal. The reasons include multiple references to Mongolia and only one reference to Nepal. It is therefore obvious the reference to Nepal was a typographical error. Similarly, there does not appear to be any doubt the Tribunal correctly appreciated the first applicant was a female. The reference in [16] of the Tribunal’s reasons to “his application” is another typographical error. Ms Enkhbat nonetheless argued the apparent carelessness that led to these errors should give the Court pause when considering the integrity and accuracy of the Tribunal’s findings.
A high-standard of decision-making and decision-writing is essential if the Tribunal is to retain public confidence and achieve its unique mission in our system of administrative law. While the Tribunal is importantly a means for ensuring individual justice, it is also a tool of good government that is intended to improve the quality of government decision-making. The Tribunal goes about that mission by modelling good (in particular, objective) decision-making behaviour. To put it another way, Tribunal decision-making establishes norms and provides guidance to decisionmakers on how to proceed in the particular case, and in relevantly similar cases in the future. In that sense, decision-writing can be understood as a form of advocacy in which the Tribunal contends for a solution to a practical or policy problem that persuades the losing party, the bureaucracy, the wider community, and the Court upon review. The bureaucracy is educated by Tribunal decisions, even when the primary decision-maker’s decision is affirmed. The public that deals with government also benefits from that predictability. While not every case the Tribunal decides has precedent value, a reputation for good decision-making must be jealously guarded so the Tribunal’s authority is intact when required.
Having said that, I expect there are few decision-makers (including judges) who have not winced when they re-read judgments or reasons for decision that contain minor errors that were not picked up prior to publication. That is why almost all courts and tribunals have some version of the so-called ‘slip rule’ which permits post-publication corrections. Writing decisions is a difficult intellectual and logistic exercise, and a quintessentially human endeavour.[1] It is easy to make minor mistakes when one is in the throes of producing a set of reasons. The risk of error is all the greater when a harried decision-maker is under pressure to quickly complete a case before moving on to the next one. Tired decision-makers make mistakes, but it is easy for anyone to make and miss errors. Having written the reasons, the eye of the writer is often deceived by what their mind intended – which is why editing one’s own work is a fraught task. That practical challenge explains why Courts and the Tribunal have traditionally relied on associates. Rigorous editing by a fresh but informed set of eyes (as opposed to a cursory proof-read by someone without awareness of the issues in the case, or feedback from a form of artificial intelligence) is an important form of quality control.
[1] One can readily accept artificial intelligence solutions may yet have an important role to play in case management and dispute resolution in tribunals. However one must not lose sight of the fact administrative tribunals provide the human control and mediation of both automated and manual decision-making processes. If algorithms are policy in automated decisions, flesh-and-blood tribunal members exercising human judgment, informed by experience and a sense of empathy, are the feedback mechanism that can moderate those processes and make them work.
While I acknowledge the individual Tribunal member or judge must always take responsibility for what they have written, that does not relieve these institutions of the need to provide proper, skilful and timely support for decision-making. That support comes in many forms, including appropriate listing processes and sensitive workload management, adequate editing and review arrangements, and professional development training on decision-writing. There must be a question over the adequacy of those important quality controls if errors repeatedly occur.
But I digress. It is enough to observe for present purposes that the typographical errors identified by Ms Enkhbat are unfortunate but do not of themselves suggest material jurisdictional error.
DID THE TRIBUNAL ERR IN RELATION TO THE ALLEGED TRANSLATION AND CONNECTION PROBLEMS?
Ms Enkhbat’s complaints about the translation and reception issues in the hearing present more complicated issues. I accept at once that an applicant is likely denied procedural fairness if, as a practical matter, they cannot participate in the Tribunal’s hearing because the translation services are so inadequate that the applicant is prevented from making their point or understanding what is put against them. The same observation applies where the connection in a remote hearing is interrupted or degraded to the point the parties are unable to have a coherent exchange. In either event, a Court may decide the Tribunal has failed to discharge its statutory function of conducting a review.
It goes without saying that a Tribunal member must be diligent to ensure interpreters are doing their job. I acknowledge that is easier said than done. The Tribunal member will not ordinarily be able to determine whether a translation is accurate. The Tribunal is to some extent dependent on the professionalism of the interpreter. But poor-quality interpreters often give themselves away. Where an individual who is assisted by an interpreter is represented by someone else, the Tribunal is entitled to expect the representative will bring any problems to the attention of the Tribunal. The presiding member must also be alive to difficulties that can arise with connections when the Tribunal conducts a remote hearing. Network coverage for one or more of the participants might be poor, and hardware failures are common. That is a challenge where the member is increasingly expected to multi-task as they conduct the hearing. The member’s job is made more difficult by common presentation mistakes. A surprising number of people – including some of those appearing regularly in a professional capacity – have no idea how to communicate effectively by remote media. They can be heedless of the need to speak into a working microphone or look into the camera when there is a video feed. There is also a risk that someone who wants to frustrate a hearing might pretend they are impacted by technical issues.
In this case, there is no mention in the reasons for decision of any difficulties with an interpreter or any degrading or interruption of the telephone connection. Ms Enkhbat says those problems marred the conduct of the hearing, and she claims she and her representative pointed out the difficulties to the presiding member.
I was not provided with a transcript of the hearing. A transcript might have showed Ms Enkhbat or her representative remarking on the problems, and it might have confirmed Ms Enkhbat’s claim that the Tribunal itself expressed frustration in the face of the interpreter’s performance or connection issues. At a minimum, I would have expected some affidavit evidence from the representative which pointed to the problems with the translation and the connection issues.
Ms Enkhbat said she had a recording of the Tribunal’s hearing in her possession but I was not satisfied it would be helpful or appropriate to simply play that tape at the hearing before me. A recording would not necessarily capture any confusion over the interpreter’s translation, and connection issues might be difficult to detect on a recording. I considered adjourning the hearing to provide Ms Enkhbat with an opportunity to provide a certified transcript of the hearing with an affidavit that revealed the problems. I have decided against that course. First, I am satisfied the applicants have had ample opportunity to prepare their case, even allowing for the fact they are now unrepresented. Second, the complaint about the quality of the audio connection in particular is of comparatively recent origin. While the application for review includes reference to issues with the interpreter, the questions about the quality of the audio connection were not raised until Ms Enkhbat addressed the hearing before me. Third, Ms Enkhbat was unable to clearly identify by reference to the Tribunal’s reasons for decision what information the Tribunal supposedly missed because of translation or connection issues.
In those circumstances, I am not satisfied the applicants have established the Tribunal’s hearing was impacted by issues that effectively denied the applicants the procedural fairness to which they were entitled. It follows the Tribunal’s statutory function was discharged, and this ground of review must fail.
CONCLUSION
The application for judicial review must be dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 6 March 2025
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