Gajurel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 295
•11 March 2020
FEDERAL COURT OF AUSTRALIA
Gajurel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 295
Appeal from: Gajurel v Minister for Immigration & Anor [2019] FCCA 2606 File number: NSD 1622 of 2019 Judge: YATES J Date of judgment: 11 March 2020 Catchwords: MIGRATION – application for Student (Temporary) (Class TU) (subclass 500) visa – where delegate not satisfied applicant intended genuinely to stay temporarily in Australia - where Tribunal affirmed decision of delegate not to grant visa - whether primary judge erred in finding no jurisdictional error Legislation: Migration Act 1958 (Cth) ss 65, 359AA, 359A, 360
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Date of hearing: 11 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 64 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr D J McDonald-Norman Solicitor for the Respondents: Mills Oakley ORDERS
NSD 1622 of 2019 BETWEEN: ARBIN GAJUREL
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
11 MARCH 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
On 29 August 2016, the appellant applied for a Student (Temporary) (Class TU) visa. The relevant subclass was Subclass 500 (Student). On 20 October 2016, a delegate of the first respondent, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refused to grant the application, pursuant to s 65 of the Migration Act 1958 (Cth) (the Act), because the appellant did not satisfy the requirements of cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth). In short, the delegate was not satisfied that the appellant intended genuinely to stay temporarily in Australia and was thus a genuine applicant for entry and stay in Australia as a student.
The appellant applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), to review the delegate’s decision. On 22 November 2017, the Tribunal invited the appellant to attend a hearing. The invitation letter referred to the delegate’s decision and the reasons that were given for the appellant not satisfying the relevant requirements for the visa. The letter advised the appellant that he should have regard to the delegate’s reasons, and any changes in his circumstances, in providing documents to the Tribunal and preparing for the hearing. After requesting the appellant to provide certain documents (including his current Certificate of Enrolment (COE), the letter said:
We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached. Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No. 69.
The appellant appeared before the Tribunal on 15 December 2017 to give evidence and present arguments. He was assisted by a registered migration agent. On 13 June 2018, the Tribunal affirmed the decision under review.
The appellant applied to the Federal Circuit Court of Australia (the Federal Circuit Court) for judicial review of the Tribunal’s decision. He raised eight grounds. Not all grounds were pursued. At the hearing of his application, he was represented by counsel. The Federal Circuit Court was not persuaded that the appellant had demonstrated jurisdictional error in the Tribunal’s decision, and dismissed the application.
The appellant appeals from the Federal Circuit Court’s judgment. He has raised five grounds of appeal.
THE TRIBUNAL
At the Tribunal hearing, the appellant’s evidence was that he was currently enrolled at the Holmes Institute in a course leading to the award of a Bachelor of Professional Accounting. He said that he had started the course in August 2016 and had taken six units of study over three semesters. He said that although he had taken exams, he had not passed any subjects. He said that his study had been interrupted by health issues. He said that he expected to finish his course by March 2019.
The appellant also informed the Tribunal that he had finished a Diploma of Business (Accounting). He said that he had commenced a Business degree at the University of Technology Sydney (UTS). However, his enrolment had been cancelled for non-payment of fees. He was unable to come to satisfactory arrangements with UTS. As the appellant put it, UTS was not satisfied that he would progress in his studies. He claimed that he attempted to re-enrol, but was unable to.
At the hearing, the Tribunal pointed out that, despite the appellant stating that he was currently enrolled in a course of study, his PRISM record showed the contrary. He agreed that he was not currently enrolled but said that he had been enrolled in the previous year. He initially told the Tribunal that he had been granted a deferment from his studies. However, he later said that he had been late in seeking a deferment and was unable to enrol in the next semester. He informed the Tribunal that he expected to get a COE once the college processed his application. I note that, following the hearing, the appellant’s representative provided the Tribunal with a COE in relation to his course at the Holmes Institute.
In its Decision Record, the Tribunal recorded the following further evidence given by the appellant:
12.Prior to leaving Nepal, the applicant had completed high school and decided to come to Australia to study as it would help him find employment. According to the applicant there is a stable government and growing economy in his own country and he is confident of finding a good job. The applicant has parents and a sister in Nepal and two married sisters in Australia. The applicant declared he was supported in Australia by his parents and a sister who helps him. He advised he has also worked as a Manager at Woolworths after beginning in night fill and progressing to a part-time manager position.
13.The applicant claimed he has to return to Nepal to look after his family and he expects a degree from Australia will help him to find employment in the area where he lives. The applicant has not returned to Nepal since he arrived in Australia but said his family have visited him. According to the applicant he is a genuine student and claimed he had a lot of options to stay in Australia but wants to finish his studies. When asked to explain what he meant, the applicant said he could have applied for other visas but wanted to finish what he started. The applicant said he recently got married and his wife is also studying in Australia.
In dealing with the question whether the appellant genuinely intended to stay in Australia temporarily, the Tribunal made these findings:
20.The applicant’s circumstances in his home country are that he has completed high school but does not appear to have been employed prior to coming to Australia to study. His parents and one sister continue to reside in Nepal. At the time of the Tribunal hearing the applicant had not returned to Nepal since arriving in Australia on 20 June 2013 although he declared his parents have visited him in Australia. The applicant has claimed Nepal now has a stable government and growing economy and he is hopeful of finding a job on his return.
21.In Australia the applicant has two married sisters, one of whom he said provides him with support. According to the applicant’s evidence he has worked as a supermarket manager after beginning with night fill work. The Tribunal considers these circumstances, together with the length of time the applicant has spent in Australia to be incentives to remain.
22.The applicant explained his failure to maintain enrolment as being due to difficulty paying fees. In this regard he provided email evidence of his communications with UTS regarding his enrolment and their rejection of his application. The Tribunal is not satisfied the university refused to enrol him based only on non-payment of fees. From the email evidence submitted between the applicant and UTS, he was required to provide a GTE [genuine temporary entrant] statement that included an explanation of what he had been doing since discontinuing studies at UTS and evidence of how his expenses of $18,500 per year for two years would be covered. The applicant did not provide the Tribunal with his submissions to UTS but the university advised the applicant on 26 July 2016 that he did not meet the GTE requirements.
23.The applicant declared that gaps in his study were caused by ill health and the inability to re-enrol in his Bachelor degree. A medical certificate dated 27 October 2017 in which the applicant was referred for depression says the applicant “reported experiencing workplace stress leading to depleted motivation, flat mood, lack of energy and difficulties with concentration and memory.” The applicant’s other medical evidence consists of documents relating to a workplace injury to his finger and treatment for back pain due to his work. The Tribunal is not satisfied the applicant’s primary motive in Australia has been to study and considers his lack of academic progress was due to focussing on work as a supermarket manager. A Psychological Support Letter dated 14 December 2017 states the applicant has been suffering from depression but is now prepared to commit to his studies. The Tribunal is not satisfied based on the applicant’s past history that he will in fact be able to maintain enrolment or succeed academically.
24.The Tribunal takes into account the courses the applicant has completed to date but considers his lack of achievement over five years to be unsatisfactory for a student whose primary concern should be to progress in his studies. Regarding his future plans, the applicant was only able to give generic responses which involved returning to Nepal and finding a job. There is no evidence he has investigated any options and the length of time he has spent away from the country, along with a lack of work experience in the his field of study indicates he has no defined plans for returning to Nepal.
As I have said, the Tribunal was not satisfied that the appellant was a genuine applicant for entry and stay in Australia as a student (in particular, that the appellant intended genuinely to stay in Australia temporarily), and affirmed the decision under review not to grant the appellant the visa he had sought.
THE FEDERAL CIRCUIT COURT
As pleaded and particularised, the application for judicial review in the Federal Circuit Court was a jumble of jurisdictional error concepts. The grounds display an evident lack of rigour in their formulation.
The appellant’s first ground was that the Tribunal had committed a jurisdictional error by taking into account irrelevant considerations; that the Tribunal had acted unfairly; and that the Tribunal had acted in breach of s 360 of the Act. The appellant did not particularise the irrelevant considerations that were allegedly taken into account. His particulars did refer to the Tribunal’s finding that the appellant’s lack of academic process was due to him focusing on his work as a supermarket manager. The particulars alleged that the Tribunal “came to a wrong conclusion based solely on the employment of the applicant” and had not considered “all the medical evidence and supporting letters”. The particulars also alleged that the Tribunal had not put the appellant on notice that his part-time work was “being considered as going to the issue of genuineness”.
The appellant’s second ground was that the Tribunal had committed a jurisdictional error by failing to take into account relevant considerations. In the particulars to this ground, the appellant contended that the Tribunal failed to consider his ill-health as a reason for his lack of academic progress; the fact that the appellant had sought a deferment of his studies; and the fact that the appellant had incentives to return to Nepal, in particular to care for his parents and to manage properties in Nepal. It seems that these properties are his parent’s assets but the particulars indicated that the appellant regards them as his own.
The primary judge dealt with these grounds together. In doing so, he noted the appellant’s written submissions in relation to the second ground also appeared to suggest that the Tribunal’s decision was illogical, irrational and unreasonable. The primary judge held:
35.In my view, the applicant has failed to identify the consideration the Tribunal was bound to take account of or should have considered. I accept the first respondent’s submission that the Tribunal was not required to give a running commentary as to its views of the applicant’s evidence (see SZBEL).
36.The Tribunal clearly considered the applicant’s ill-health, the reasons for his study gaps and his future plans in Nepal. These were all relevant considerations. I am satisfied that the applicant was clearly on notice from the delegate’s decision as to what matters were in dispute. I am not satisfied that s 360 of the Act was breached. The suggestion that the decision is illogical, irrational or unreasonable because it failed to take account of the applicant’s filial obligations in Nepal cannot be sustained. That material was before the Tribunal. As I said, it is not necessary for the Tribunal to refer to every item of evidence (see Applicant WAEE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2003) 236 FCR 593 at paragraph [46]).
37.In my view, this ground invites merits review. I also note that in terms of unreasonableness, I am not satisfied that the decision of the Tribunal meets the stringent test, that arises in only rare circumstances, for a decision to be found to be legally unreasonable.
The third ground of judicial review was that the Tribunal denied the appellant procedural fairness under s 359 and s 359AA of the Act. The essence of this ground was that the Tribunal did not give the appellant an opportunity to comment on its intended finding that he had no defined plans for returning to Nepal. This ground also contained the following particulars, the significance of which, in the context of this ground, is unclear:
…
(b) The Second Respondent concluded that based on past history that the applicant is unable to maintain enrolment or succeed academically despite repeated plea by the applicant on the contrary over the hearing that his lack of academic progress was due to his health and he want to continue doing well.
The primary judge held:
38. I am not satisfied that there is any information identified that gives rise to an obligation under s 359A(1) of the Act. Again, the Tribunal is under no obligation to give the applicant an appraisal of its views on the evidence that he gave to enable the Tribunal to rebut these views. The Tribunal was reasonably entitled to take account of the applicant’s past history when considering his stated future intentions, particularly given it was considering whether the applicant was a Genuine Temporary Entrant, and I emphasise the word temporary, to Australia who would return to Nepal following the completion of his study.
The fourth ground of judicial review was a collection of asserted errors, expressed as follows:
4. The Second Respondent made a jurisdictional error by making a decision which is unreasonable, irrational/illogical and lacks rational connection to the evidence to support the findings. Alternatively, the Tribunal applied the incorrect test and / or asked the incorrect questions or failed to ask the correct questions and / or misconstrued the requirements of GTE.
This ground was supported by the following particulars:
(a)The Second Respondent at [24] states that the Applicant considers his lack of achievement over 5 years to be unsatisfactory without taking notice of the Applicant's clear explanation provided at [23] pertaining to his ill-health and his indication that he will finish his studies in about a year or so or in March 2019 semester without a break (T p5 Lines 5-20).
(b)Whilst addressing the issue of GTE, the Tribunal has conflated the issues of inability to study owing to ill health to the issue of genuineness and failed to make clear findings how ill health affected genuineness (rather reaching broad conclusion at [23] that primary motive has not been to study).
(c)The Tribunal applied the incorrect test and / or asked the incorrect questions or failed to ask the correct questions and / or misconstrued the requirements of GTE when the issue for determination is genuineness. The Tribunal failed to engage with how the ill health was relevant to the issue of genuineness to study (whether concluding that the medical certificates were not genuine or ill health would continue).
The primary judge held:
39. Ground 4 makes a series of allegations, one of which was abandoned, of failing to ask the correct question, failing to make clear findings or realistically engaging with the issues, misconstruing requirements and/or is illogical or irrational in its findings. That is a plethora of submissions and indeed it would be much better if the submission was clearer. I am satisfied that Ground 4 is, in reality, an expression of dissatisfaction with the outcome of the Tribunal hearing. I am satisfied that the Tribunal clearly considered all of the available evidence, gave it weight and came to a conclusion that the applicant was unhappy with. I am satisfied that the findings were open to the Tribunal based on the evidence that was before it. Therefore, Ground 4 is not sustainable.
The fifth and sixth grounds of judicial review were not pursued. The seventh ground was that the Tribunal made a jurisdictional error by taking into account irrelevant considerations; that the Tribunal was procedurally unfair; and that the Tribunal had breached s 360 of the Act. As particularised, this ground focused on the Tribunal’s finding that there was no evidence that the appellant had investigated any options for returning to Nepal and that he had no defined plans for doing so. The appellant’s case was that the Tribunal did not put him on notice that these matters were being considered as issues going to his genuineness to stay temporarily in Australia. It is apparent that this ground was related to the first two grounds raised by the appellant. In fact, the appellant relied on the same submissions in support of them.
The primary judge held:
40. The Tribunal was not required to advise the applicant of any concerns it had regarding his evidence to allow him the chance to provide further material to do with its concerns. There was no breach of s 360 of the Act, in my view. The fact that the Tribunal treated the issue differently to the delegate is irrelevant as it was conducting a merits review. It is entitled to different conclusions and to give different weight to the evidence before it. The Tribunal came to the conclusion that the applicant was not a Genuine Temporary Entrant, for the purposes of study, based on all of the evidence. There was no requirement for the Tribunal to answer each of the assertions of the applicant in detail in its decision. It was entitled to come to an overall view based on the totality of the evidence.
The eighth ground of judicial review was that the Tribunal denied the appellant procedural fairness. As particularised, this ground focused on the Tribunal’s finding that it was not satisfied that UTS’s refusal to re-enrol the appellant was based only on his non-payment of fees. In this connection, the Tribunal had noted that UTS had informed the appellant that he did not meet its GTE requirements. Under this ground, the appellant’s complaint was that the Tribunal did not ask about his submission to UTS. He also argued that the Tribunal had come to the wrong conclusion.
The primary judge held:
41.I am not satisfied that there is any breach of procedural fairness. I am satisfied that the applicant was given ample opportunity, both in the hearing and by way of an opportunity to give post-hearing submissions, as to any material that he wished to put to the Tribunal. I am satisfied that the Tribunal did not misconstrue the requirements that UTS put on the applicant with the requirements under the Migration Act. I am satisfied that the Tribunal applied the criteria under the Regulations, including Direction 69, and did not purport to apply some other test. The Tribunal made a finding that was clearly open to it.
42.The delegate’s decision plainly identified issues and the Tribunal traversed them during the course of the hearing and gave the applicant the opportunity to deal with them, both at the hearing and post-hearing. I am convinced that the finding was open to the Tribunal and that the issues that were raised are such that the applicant has not discharged his onus of proof. It is for the applicant to present the material he wished to rely upon to show he met the requirements of being a Genuine Temporary Entrant. See Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at paragraph [4].
THE APPEAL
The grounds of appeal
The appellant’s notice of appeal contains five grounds, expressed as follows:
1.THE SECOND RESPONDENT MADE A JURISDICTIONAL ERROR BY TAKING INTO ACCOUNTS IRRELEVANT CONSIDERATIONS.
2.FAILING TO TAKE INTO ACCOUNTS RELEVANT CONSIDERATIONS DESPITE A CLEAR EVIDENCE GIVEN AS A LEGAL DOCUMENTS.
3.THE SECOND RESPONDENT MADE A FINDING THAT THE APPLICANT HAS NO DEFINED PLANS FOR RETURNING AND WAS NOT GIVEN AN OPPURTITY TO COMMENT AND FURTHER PLANS AFTER HIS STUDY COMPLETION.
4.JURISDICTIONAL ERROR BY DENYING THE APPLICANT PROCEDURAL FAIRNESS UNDER SS359AA (MIGRATION ACT 1958)
5.DESPITE A PROCEDURAL ERROR ALL THE EVIDENCE WAS NOT TAKEN UNDER ACCOUNTS. ALL THE EVIDENCE SHOULD BE TAKEN UNDER ACCOUNTS AND REVISED.
(Errors in original.)
These grounds are not particularised and do not allege error on the part of the primary judge. On 4 November 2019, orders were made requiring the appellant to file and serve a written outline of submissions. He has not complied with this order. As a consequence, at the commencement of the hearing of the appeal, neither the Minister nor the Court were any wiser as to how, it was said, the judgment below was attended by error.
An adjournment application
The appellant was self-represented. He commenced by seeking an adjournment of the hearing. His reasons, as expressed through an affidavit he made on 10 February 2020, were that he was in his last semester of study at the Holmes Institute and that it was hard for him to organise the documents and submissions on which he wished to rely within time which, he said, would impact on his course of study and his final examinations commencing on 21 February 2020. He said that an adjournment would also allow him time to get some “ground knowledge” in respect of the submissions he could make “fairly justifying myself in this case”. He also said that he was figuring out the “cost structures that might be involved in this case” and was looking to obtain legal representation.
I note that the appellant’s notice of appeal was filed on 8 October 2019. On 4 November 2019, the appellant was informed by email of the orders made by a Registrar for the preparation of the appeal for hearing. These orders included an order that the appeal book be prepared, filed, and served by the Minister (as the appellant was not legally represented). The appellant was informed that, in the ordinary course, his appeal would be listed in the period 3 to 28 February 2020. The email requested the parties to notify the Court by no later than close of business on 11 November 2019 of any unavailable dates during that sitting period. The email stated that this was to enable the Court to make appropriate listing arrangements. The appellant did not advise the Court of any unavailable dates. On 17 December 2019, a further email was sent to the appellant advising him of the listing of the appeal for hearing on 11 February 2020.
On 30 January 2020, the New South Wales District Registry of the Court received an email from the appellant requesting an adjournment of the hearing. The reasons advanced were substantially the same reasons given in the appellant’s affidavit to which I have referred. The appellant was asked to approach the Minister’s solicitors with his request. He did so. The Minister’s solicitors informed the appellant that the Minister would not consent to an adjournment and that, if he did not appear, the Minister would seek dismissal of the appeal, with costs.
I was not persuaded that an adjournment should be granted and refused the application, for the following reasons.
First, the appellant had delayed in seeking the adjournment. He had been on notice for some considerable time of the listing of his appeal. Despite having been requested to do so by 11 November 2019, he did not raise any difficulty with his availability in appearing in the February 2020 Full Court and Appellate Sittings. The appellant first made his request for an adjournment after his written outline of submissions were due to have been filed. In the meantime, the Minister had filed his written outline of submissions, and was ready to proceed on the appointed hearing date.
Secondly, the grounds on which the appellant sought the adjournment were not satisfactory or sufficient:
(a)The appellant’s argument that he needed time to organise “documents” was misconceived. The task of preparing, filing and serving the appeal book had been undertaken by the Minister. In oral argument, it became clear that the appellant also contemplated obtaining documentary evidence which he wanted to tender at the appeal hearing to bolster his claim that he was a genuine applicant for entry and stay in Australia as a student. This was evidence that was not before the Tribunal or the Federal Circuit Court. As explained by the appellant, this evidence also covered material which post-dated the Tribunal’s decision. I am unable to see any proper basis on which such evidence could be received on appeal, particularly as the purpose of its tender was to challenge the Tribunal’s findings of fact.
(b)The appellant’s argument that the hearing of the appeal would interfere with his studies was not persuasive. The hearing of the appeal had been listed for no more than a half day and the appellant’s examinations were not until much later in February 2020.
(c)The appellant had had ample time to secure legal representation, if that was his wish. He had had ample time to consider his financial position to come to a decision as to whether he could afford such representation.
(d)The appellant had filed his notice of appeal on 8 October 2020. As he had drafted the notice of appeal, he must have had an understanding of the grounds he wished to raise. He should have been in a position to argue those grounds on the appointed day.
Having rejected the adjournment application, I invited the appellant to address me on his grounds of appeal.
The appellant’s submissions
Ground 1 of the notice of appeal is not particularised. It does not identify the irrelevant considerations which the Tribunal had allegedly taken into account. The appellant commenced by arguing that the Tribunal erred by taking into account his work as a supermarket manager (see [23] of the Decision Record) as the main factor for not progressing his studies. He said that his work at the supermarket was irrelevant. He argued that his lack of progress was due to other circumstances, namely the breakdown of a relationship and his mental health problems (depression). Later in his submissions, the appellant accepted that he did not inform the Tribunal that he had been in a relationship that had broken down. The appellant also argued that his lack of progress was attributable to the change in his financial circumstances after the earthquake in Nepal in April 2015.
In relation to this ground the appellant also said that, because of his mental health problems, he was unable to explain to the Tribunal all of the circumstances relating to the cancellation of his COE by UTS. I note, however, that the appellant was assisted in the Tribunal’s review by a registered migration agent. There is no suggestion in the Decision Record that the appellant was not able to give evidence and present arguments because of mental health problems. For completeness, I record that appellant also argued that, when originally applying for his visa, his agent advised him that it was not necessary for him to present a “statement of purpose” which the appellant regarded as an error by his agent.
As the appellant’s argument progressed, he accepted that his real point was that the Tribunal had made an incorrect finding of fact as to the reason for his lack of progress as a student.
Ground 2 of the notice of appeal is not particularised. It does not identify the relevant considerations which the Tribunal failed to take into account. The appellant’s submissions in respect of this ground proceeded along the same lines as Ground 1, namely that the Tribunal came to a wrong finding of fact as to the reason for his lack of progress as a student.
With respect to Ground 3 of the notice of appeal, the appellant argued that, because of his mental health problems, he was unable to explain to the Tribunal why he needed to study in Australia and what he intended to do after he completed his studies, which was not only to go back to Nepal but to look for other opportunities in the South Asia Pacific region. In developing this ground, the appellant also suggested that, because of his mental health problems, he had not been able to formulate fully all his future plans and that he needed time to carry out (in his words) research and development.
With respect to Ground 4 of the notice of appeal, the appellant took me to this finding by the delegate:
According to PRISMS, you were excluded from your course, a Bachelor of Business (City) for non-payment of fees. According to PRISMS records you did not submit an appeal against this decision. This confirms that you did not, in fact, pay your course fees as required, and as such you have breached condition 8516 of your previous student visa. It is also behaviour inconsistent with that of a genuine student whose primary purpose is to progress in their studies.
The appellant argued that he was denied procedural fairness (presumably by the delegate) because account was not taken of all the study he had undertaken. The appellant submitted that he had not been “out of studies” at all.
In order to understand this ground, I referred the appellant to the Tribunal’s findings at [10] of its Decision Record, where the Tribunal noted that the appellant’s PRISM record showed that, at the time of the hearing, the appellant was not enrolled in a course of study. The Tribunal’s Decision Record notes that, in fact, the appellant agreed that he was not currently enrolled in a course of study. In this appeal, the appellant accepted the correctness of the Decision Record. However, he explained that, because he was late in enrolling in the November semester at the Holmes Institute (he was told to come back in March the next year), he enrolled in an English course. The upshot of this ground appears to be that the appellant disputes that there was, in fact, any gap in his studies—although he did not inform the Tribunal that he had enrolled in an English course.
The appellant’s submissions on Ground 5 of the notice of appeal repeated his contention that the Tribunal erred in its findings as to the reason for his lack of progress as a student. In developing his submissions on this ground, the appellant volunteered that his work as a supermarket manager “definitely played a bit of part to not progressing on my studies”. However, he once again attributed the cause of his lack of progress to the earthquake in Nepal in March 2015, and the breakdown in his relationship (which, he accepted, he did not tell the Tribunal about).
Consideration
As pleaded, Ground 1 of the notice of appeal is similar but not identical to the appellant’s first ground of judicial review in the Federal Circuit Court; Ground 2 is similar but not identical to the second ground of judicial review; and Grounds 3 and 4 are similar but not identical to the third and seventh grounds of judicial review. Ground 5 does not appear to relate to any specific ground of judicial review raised below. As will be apparent from my summary at [34] – [42] above, the grounds of appeal took on a different complexion when articulated in the appellant’s oral argument.
As argued, Grounds 1 and 2 of the notice of appeal raise no more than a disagreement with the Tribunal’s factual finding as to the reason for the appellant’s lack of progress as a student. In explaining that disagreement, the appellant referred to a factor which he did not even advance before the Tribunal, namely the breakdown of a relationship. The nature of this relationship was not explained in the course of the appeal beyond the appellant saying that it was personal and of a kind that he would not want to disclose (and had not disclosed) to “any of my agents”. He said that it had led to “a lot of difficulties in my life”.
In this connection, I note that the appellant’s evidence to the Tribunal included the following information:
… whatever happened in the past was because of my, you know, health issues and all that, but I’m gradually overcoming with that situation. I recently got married six months ago, so my wife, she’s studying here as well, so my wife is helping me to overcome with these health situations as well, so, yes, I’m pretty happy with her at this moment, so, yes.
I infer from this evidence that the relationship breakdown to which the appellant referred at the hearing of this appeal, and which the appellant said had occurred prior to the hearing before the Tribunal, had nothing to do with his wife.
The appellant also contended that, because of his mental health problems, he had not been able to explain his circumstances to the Tribunal. The Tribunal was, of course, aware that the appellant had been treated for depression. For example, at [23] of its Decision Record, the Tribunal referred to a Psychological Support Letter dated 14 December 2017 which stated that the appellant had been suffering from depression but was prepared to commit to his studies. This letter is dated the day before the Tribunal hearing. There is nothing in the Psychological Support Letter to suggest that, because of his depression, the appellant was not able to give a complete and coherent account of his circumstances to the Tribunal. And, as I have said, the appellant was assisted by a registered migration agent. The transcript of the Tribunal hearing shows that the agent was present throughout the time that the appellant gave his evidence and was also afforded the opportunity to make submissions on the appellant’s behalf, in addition to those already advanced by the appellant himself. Therefore, I do not accept that the appellant was not given the opportunity to present, or was unable to present, evidence and arguments to the Tribunal as to his circumstances.
As argued, Grounds 1 and 2 disclose no jurisdictional error in the Tribunal’s decision, let alone appealable error in the Federal Circuit Court’s judgment. It was for the Tribunal to assess and weigh the evidence that the appellant chose to put before it.
In so far as Ground 1 is based on the contention that the appellant’s work as a supermarket manager was an irrelevant consideration for the Tribunal, I reject the contention. I accept the Minister’s submission that the appellant’s employment situation in Australia (and how it affected, or was likely to affect, his academic progress) was a relevant consideration to which the Tribunal could, and did, legitimately have regard in determining whether the appellant was a genuine applicant for entry and stay as a student.
In the proceeding below, the appellant argued, in relation to this ground, that he was also denied procedural fairness. The primary judge rejected that contention. The appellant has not demonstrated error in that finding. The invitation to the appellant (see [2] above) and the delegate’s decision (the reasons for which were provided to the appellant) clearly put the appellant on notice that whether he was a genuine applicant for entry and stay in Australia as a student, including whether the appellant genuinely intended to stay temporarily in Australia, was at issue before the Tribunal.
In so far as Ground 2 should be taken as based on the contentions advanced in submissions in the Federal Circuit Court in respect of the second ground of judicial review, no error has been shown in the primary judge’s finding and conclusion that the Tribunal did, in fact, take into account the appellant’s ill-health as a reason for the gap in his studies and as a reason for his lack of academic progress. The Tribunal clearly referred to this at [23] of its Decision Record. I accept the Minister’s submissions that the Tribunal was not required to accept the appellant’s evidence in this regard. The fact that the Tribunal did not accept the evidence does not mean that the evidence was not considered.
As the primary judge recorded, the appellant also raised an argument that the Tribunal’s decision was illogical, irrational and unreasonable because it failed to take account, as incentives for the appellant to return to Nepal, his filial obligations to his parents and his need to manage properties. The primary judge rejected that contention, noting (at [28]) that the appellant’s future plans in Nepal were considered by the Tribunal.
The appellant has not demonstrated error in the primary judge’s finding. The Tribunal referred to the fact that the appellant claimed that he had to return to Nepal to look after his parents: see [13] of the Decision Record. The Tribunal also noted that the evidence that the appellant had given to the Tribunal regarding his future plans elicited only “generic responses” which involved returning to Nepal and finding a job: see [24] of the Decision Record. This finding is based on the following exchange between the Tribunal and the appellant:
MEMBER:Okay. So what would you say is your incentive to return to Nepal after your studies?
MR GAJUREL: After my studies because I’m the only one son of my mum and dad – Right now there’s a sister. She’s looking after my parents at this moment, but as soon as she gets married, which she is eventually going to get soon, and I have to look after my family. I have to look after my mum and dad. Also I have my house there. I have my properties there back in Chitwan where – which is a business hub at this moment, so ---
MEMBER: Is that property that you own or is that family property?
MR GAJUREL: That’s a family property. So I would be looking forward to look after my families and take all the responsibility for my mum and dad back in my country. And also look for the job opportunities. I’m just 24 now so back before I finish in one-and-a-half years, which will be one-and-a-half on time, then I will get more opportunity going back to my country. With that degree I would be presenting in the future.
For these reasons, Grounds 1 and 2 of the notice of appeal have not been established.
Ground 3 of the notice of appeal raises a denial of procedural fairness—essentially that the appellant was denied the opportunity to comment on his future plans after he finished his studies. However, as argued by the appellant, there was no failure on the part of the Tribunal to accord him procedural fairness. Rather, he professed an inability, because of his mental health problems, to adequately address the Tribunal on his future plans. I do not accept that submission, for the reasons I have given at [47]. Further, the exchange quoted above shows that the appellant was invited to address, and did address, the Tribunal on his incentives to return to Nepal. The quotation reveals the extent of the information the appellant gave the Tribunal in that regard.
In the proceeding below, the third ground of judicial review alleged a breach of s 359A(1) of the Act. The primary judge found that there was no information identified by the appellant that gave rise to an obligation under s 359A(1) of the Act that was not met. The appellant has not demonstrated error in that finding.
For these reasons, Ground 3 of the notice of appeal has not been established.
Ground 4 of the notice of appeal also raises a denial of procedural fairness. The precise lack of procedural fairness is not particularised, but a breach of s 359AA of the Act is alleged.
As argued by the appellant, this ground was not directed to a lack of procedural fairness but to a factual disagreement about whether there had been a gap in the appellant’s studies between the November and March semesters at the Holmes Institute. The appellant contended that the Tribunal erred in its factual finding that there was a gap. The appellant argued that there was no gap because he had enrolled himself in an English course in that period. The difficulty for the appellant is that he did not inform the Tribunal of that fact (if it be a fact) and, moreover, expressly agreed with the Tribunal that, at the time of the hearing, he was not currently enrolled in a course.
As I have noted, as pleaded, Ground 4 is similar to the seventh ground of judicial review advanced in the Federal Circuit Court. The ground in the application for judicial review included an allegation that the appellant was denied procedural fairness and that the Tribunal had breached s 360 of the Act. The primary judge rejected that ground. His Honour found that there was no breach of s 360. The appellant has not demonstrated error in that finding.
In this appeal, the Minister treated Grounds 3 and 4 together. In dealing with the requirements of ss 359AA and 359A of the Act, the Minister submitted (footnotes omitted):
29.Sections 359AA and 359A of the Migration Act do not require the Tribunal to put an applicant on notice as to the ‘the existence of doubts, inconsistencies or the absence of evidence’. The Tribunal was not required to put the appellant on notice of any preliminary assessment as to the credibility or sufficiency of any of his evidence in order to fulfil its obligations under ss 359AA or 359A. Further, to the extent that the Tribunal formed this view on the basis of the appellant’s own evidence in this regard, the Tribunal was not required to disclose any ‘information’ that the appellant himself had given for the purposes of the application for review: Migration Act 1958 (Cth) s 359A(4)(b). Nor, for the reasons identified in respect of Ground 1, was it required to provide a ‘running commentary’ on his evidence; it did not need to tell him that his answers in this regard were unsatisfactory in order to reach that conclusion. The Tribunal’s conclusion in respect of the appellant’s evidence in this regard – that he had only given ‘generic responses’ regarding his future plans – did not raise any new ‘issue’ requiring disclosure under s 360 and did not amount to ‘information’ which needed to be disclosed under s 359AA or 359A of the Migration Act. Further, and for the avoidance of doubt, the Tribunal’s conclusions in this regard were obviously open to it based upon the evidence given by the appellant during the hearing: …
I accept that submission. Ground 4 of the notice of appeal has not been established.
Ground 5 of the notice of appeal is an omnibus claim that the Tribunal failed to take all the evidence into account and that, for that reason, its decision should be revisited and corrected. It appears to be a reiteration of Grounds 1 and 2 and is directed to the Tribunal’s findings of fact. For the reasons given above with respect to Grounds 1 and 2, Ground 5 has not been established.
CONCLUSION AND DISPOSITION
The grounds of appeal have not been established. The appeal will be dismissed. The appellant is to pay the Minister’s costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 11 March 2020
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