Kader v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1221
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kader v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1221
File number(s): PEG 224 of 2022 Judgment of: JUDGE STREET Date of judgment: 3 November 2023 Catchwords: MIGRATION – ADMINISTRATIVE LAW – student visa – no jurisdictional error Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 3 November 2023 Place: Sydney Applicants Appeared in person Solicitor for the Respondent Ms G Mickle of MinterEllison ORDERS
PEG 224 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHANHENA BEE KADER
First Applicant
MOHAMMAD EEFAN SIDDICKI KADER
Second Applicant
INAAYA SIDDIQAH KADER
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZEN AND MULTICULTURAL AFFAIRS
First Respondent
AMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to rule 11.10, the Court appoints the first applicant as the litigation guardian for the third applicant and the Court otherwise dispenses with all other requirements under the rules and the third applicant will be described by adding the reference by her litigation guardian, the first applicant.
2.The application is dismissed.
3.The first and second applicants to pay the first respondents costs in the amount of $5,900.00.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth), in respect of a decision of the Administrative Appeals Tribunal made on 25 October 2022 affirming a decision of the delegate not to grant the first applicant’s student temporary (class TU) visas. The first applicant is the partner of the second applicant and mother of the third applicant. At the commencement of the hearing today, an order was made appointing the first applicant as the litigation guardian for the third applicant. The second and third applicants were included in the application for the student visa as family members. The first applicant, in fact, has had another child, but that child was not included in the application for the student visa.
BACKGROUND
The first applicant initially arrived in Australia on 6 February 2013 as the holder of a TU 570 student visa. The first applicant has had the benefit of a further four onshore Australian visas, and the first applicant appears to have complied with the conditions of those visas. The first and second applicants are citizens of Mauritius. The visa application was lodged on 30 April 2019.
In that application, the first applicant identified that she had completed her certificate III and Diploma in Early Childhood last year in November 2018. The first applicant identified she had completed a Diploma of Community Work Services. The first applicant identified in the application she had studied some English as well in Perth to improve her English level and had better communication skills, including reading, writing, listening and speaking.
The first applicant identified she intended to return home to her family in Mauritius, and after consideration about the advice of her family who run their own wholesale business in Mauritius, the first applicant had decided to study a course which will be very helpful for her in her life. The first applicant identified her husband would join the family in Mauritius to run the wholesale business and that she intended to open a child care centre business. The first applicant identified she needed to get some local experience to understand the system in her country, including the government requirements and laws and that they would be dealing with young children and that once she had a good knowledge of the industry she intended to set up her own business.
The first applicant contended that good preparation was extremely important and alleged that the Diploma of Social Media Marketing will help her in her business and the family business for the rest of her career. It was identified the course was very short being nine months and she had decided to complete this highly beneficial course before heading back home with her family. It was alleged that nine months of sacrifice will change the future for herself and her husband. It was alleged that only the Keystone College provides this course in Perth and that she had already studied at that school and had supportive trainers. The first applicant also identified that she would get financial support from her family members and parents.
The delegate, on 3 July 2019, found the first applicant failed to meet the criteria for the grant of the visa because the delegate was not satisfied the first applicant intends genuinely to stay temporarily in Australia. The delegate found clause 500.212 was not met and refused the application for the visa.
The first applicant applied for review, and a different tribunal affirmed the decision, and that tribunal’s decision was subsequently set aside on review to this Court, and the matter was remitted to the tribunal for a fresh determination of the review application. The tribunal confirmed with the applicants on 13 April 2022 that the matter had been remitted for reconsideration and would be reallocated to a member of the tribunal.
On 25 May 2022, there was lodged on behalf of the applicants an appointment of a representative. On 29 August 2022, the tribunal invited the applicants to attend a hearing scheduled for 22 September 2022. On 12 September 2022, that was rescheduled to a hearing date on 4 October 2022. On 3 October 2022, the applicants, through their migration agent, provided submissions to the tribunal and supporting documents. On 4 October 2022, the first and second applicants attended the hearing together with their migration agent to give evidence and present arguments. A transcript of the hearing has been tendered into evidence before this Court.
On 14 October 2022, the applicants through their migration agent provided further supporting documents to the tribunal. On 21 October 2022, there was some further information given in respect of the loss of a family member to the tribunal, and on 25 October 2022, the tribunal affirmed the decision under review.
At the commencement of the hearing today, this Court explained to each applicant the nature of the hearing, and each applicant confirmed they understood the nature of the hearing as explained by the Court.
GROUNDS
The grounds in the application are as follows:
(1)Unfair Hearing;
(2)Various incorrect information considered in the review;
(3)Incorrect information consider to such an extent that I believe that it may belong to another person/ different hearing.
TRIBUNAL’S REASONS
The tribunal, in its reasons, identified the background to the review application. The tribunal summarised the first applicant’s claims and evidence, including a typographical error in relation to the September 2012 diploma in paragraph 8, which should have said March 2012.. That error is typographical, was of no moment and is immaterial.
The tribunal identified the information provided in relation to the genuine temporary entrant criteria and summarised that material. The tribunal identified the outcome before the delegate. The tribunal summarised the procedure that had been undertaken in relation to the review application and the material that was provided. On 29 August 2022, the applicants were invited to attend a hearing on 22 September 2022. It was postponed to 4 October 2022. The tribunal identified the material provided on 3 October 2022 prior to the hearing. The tribunal summarised the content of those submissions. The tribunal referred then to the first and second applicants attending before the hearing to give evidence and present arguments. In paragraph 19 there is a procedural erroneous reference to a Hindi interpreter for the reasons explained below error that was immaterial.
It is the case that the hearing was conducted in English. There was no request for an interpreter, either prior to the hearing in response to the invitation to hearing form, or at the hearing itself. The reference to the Hindi interpreter is a procedural description error of a kind that explains why the applicants have been concerned in respect of the decision, but it does not make out any relevant error to justify a finding that the tribunal did not have a real and meaningful engagement with the whole of the applicants’ claims and evidence and does not make out any jurisdictional error. The tribunal identified the receipt of the further material on 14 October 2022 and expressly recorded that the first applicant in her statutory declaration sought to address claimed mistakes in her evidence that she provided at the hearing on the basis that she was nervous.
Reference is also made to the claimed relationship with her parents, and her parents’ investment in her studies, and the contention that she was here to stay temporarily in Australia. The tribunal also made reference to the unfortunate loss of a family member communicated on 21 October 2022. The tribunal correctly identified the relevant law and the direction to be taken into account in determining whether the first applicant intends genuinely to stay in Australia temporarily. The tribunal understood that the direction shouldn't be used as a checklist, and is only intended as a guide. The tribunal accepted that the first applicant had close family ties in her home country and that they were an incentive for her to return. The tribunal identified having had regard to the first applicant having returned to Mauritius to visit her family and that her family members have visited her in Australia. The tribunal also noted the second applicant had recently returned to spend time with his family.
The tribunal noted that the first applicant had some savings in Mauritius and accepted that the first applicant’s father had financial resources to potentially assist them in the future, and that he has obtained land that could potentially act as a site for a future childcare business for the applicant. The tribunal also accepted that the second applicant might have an opportunity to work in the father-in-law’s spice business, although he had not done so in the past. The tribunal accepted that there is no evidence of any economic circumstance that would be a significant incentive for the first applicant not to return to her home country. Reference was made to the cultural obligations of the second applicant to his parents and the tribunal having to balance the impact of that obligation of the fact that the second applicant’s two younger adult brothers are working and remain living with his parents in his home country.
The tribunal recorded that the first applicant had no fear about returning to Mauritius, and it was accepted it is a safe island and that there were no incidents of civil or political unrest. The tribunal accepted that those particular circumstances of the first applicant in her home country are factors that weigh in favour of the grant of a visa. The tribunal also took into account that when the first applicant applied for the visa, she was seeking to undertake what she had claimed was a final nine-month course in social media marketing before her proposed return in February 2020 to her home country to start her career and build her business. The tribunal accepted the first applicant had successfully completed the studies referred to and other studies in Australia, but observed that it is the general expectation of student visa applicants, that is, the general expectation of student visa applicants seeking to remain in Australia for the purpose of study.
The tribunal identified concern that the first applicant is still proposing further courses that will see her remain in Australia until four years effectively after her application for the later student visa, that would expire, then, in April 2024. That concern is entirely understandable in the context of the first applicant having arrived in Australia on a date as identified above. The tribunal was not satisfied the first applicant has reasonable reasons for not undertaking the desired qualifications in her home country. The tribunal identified the first applicant saying it would be beneficial for her, and that she would prefer to study in Australia. The tribunal noted that the first applicant claimed that she needs to be able to plan the business around compliance issues and regulatory requirements in her home country.
The tribunal noted that the first applicant claims that before she opens her childcare centre, she requires experience in the Mauritian childcare environment to understand the relevant regulatory requirements. The tribunal observed that the qualifications of the first applicant in her home country would more relevantly address the regulatory requirements in her home country and the identified gaps in the first applicant’s business plan. The tribunal identified that the first applicant’s claims about the value of the Australian overseas qualifications in general but noted the first applicant already holds several Australian qualifications, which would add value to her resume and any employment applications.
The tribunal identified concern about the recent gap in the first applicant’s studies. The tribunal expressly referred to the Diploma of Business that was completed on 16 October 2020. The tribunal recorded that the first applicant did not proceed with previous enrolments in the Advanced Diploma of Business and Diploma of Project Management and that she is only now resuming studies the day before the tribunal hearing on 3 October 2022. The tribunal identified the reasons for the delay advanced by the first applicant, which included a reference to her illness during her pregnancy and the tribunal correctly identified that there was no medical evidence to support that claim. The tribunal identified that the first applicant was unable to demonstrate that she was unable to undertake any study for the entire period of her pregnancy. The tribunal recorded that the first applicant also raised that the prior birth of her second daughter, it was difficult to study with a toddler at home.
The tribunal noted that the first applicant had successfully studies her Diploma of Business while she was undertaking her caring responsibility for the third applicant and that she also had the support of the second applicant. The tribunal took into account the first applicant’s submissions in relation to COVID and accepted that the first applicant would have been concerned about the health of her family during the pandemic. The tribunal recorded the first applicant confirmed that there was an opportunity available for online study and that she had successfully undertaken some of her Diploma of Business online. Overall, the tribunal considered that the various explanation of and by the first applicant, including her submissions and allowing for her nervousness at the hearing, it was accepted that these reasons could explain some break in her study, but the tribunal identified that its concern was a break for a period of approximately two years.
The tribunal then turned to the third applicant in relation to the remittal and the work being undertaken by the second main applicant and the concerns in relation to COVID-19 and the fact that the first applicant only obtained her current enrolments after she had been invited to a tribunal hearing. The tribunal did not accept the first applicant’s explanation that she thought no other time was right. The tribunal identified holding genuine concerns that she has returned to study for the purpose of satisfying a requirement and remaining in Australia rather than a genuine interest in the proposed qualification. The tribunal identified the first applicant’s circumstances in Australia and her family ties were found to be strong. The tribunal accepted that she does not have any other family in Australia than the presence of her husband and children in Australia. The tribunal was entitled to take into account the two children that have been born in Australia and did so.
The tribunal noted the third-named visa applicant has now commenced school. The tribunal observed that for the last five years, the first applicant and family have rented the same residence in Perth and the second-named visa applicant is working part-time in accordance with his visa as a bus driver.
The tribunal made reference to the first applicant’s circumstances and the claim that her family responsibilities and lack of support in Australia have impact on her ability to study. The tribunal made reference to the claimed obstacles that the first applicant had faced and that she was proposing further years of study in Australia. It was in that context that the tribunal referred to the fact that the first applicant has been present in Australia since 2013 and has reasonable living arrangements. The tribunal found that the first applicant had failed to demonstrate a knowledge of the same satisfactorily to the tribunal. The tribunal referred to the submissions referring to the need for strategic planning, organising and implementation skills and compliance issues in Mauritius. The tribunal noted that these matters, in fact, were not addressed in the first applicant’s evidence or at the post-hearing submissions.
The tribunal noted that in the first applicant’s evidence, she made only generalised statements about wanting to complete her studies and that the business would be very helpful. The tribunal recorded the first applicant speaking about her previous studies and found she continues to have no business to profile. The tribunal made reference to the first applicant’s evidence about an app but was not satisfied that her current courses were necessary for the development of that program in the future or that they would provide the first applicant with the necessary skills to develop the software. The tribunal noted that the first applicant had altered the order in which she would undertake a proposed study in the Advanced Diploma of Business and Project Management, which was claimed to be due to the current course availability. The tribunal found the first applicant had no specific details in relation to the relevant subjects or units of the course that she would be undertaking in relation to outcomes she expected to achieve. The tribunal was not satisfied this could be explained by the first applicant’s claimed nervousness at the hearing.
The tribunal identified the several years the first applicant had already spent studying in Australia and that it would be expected she would be able to provide reasonable detailed reasons as to benefits of her to study. The tribunal found the first applicant had not undertaken reasonable inquiries as to direct planning, regulatory and compliance issues in the future and found overwhelmingly that the first applicant’s evidence is that she would rely on the assistance and guidance of her father. That was a finding that was open to the tribunal on the evidence that was before the tribunal, taking into account the submissions that had been made on behalf of the applicants as well as the reference to her father in the hearing transcript. The tribunal then made reference to the reliance upon the first applicant’s father and was not persuaded that the first applicant has demonstrated that she had an intention to personally manage the project. The tribunal found the first applicant had relied on her father to obtain the relevant land and that he was to advise and facilitate the necessary proposals. Those findings were open on the material before the tribunal.
The only specific project the first applicant had provided evidence upon the tribunal found was her reference to the child app. The tribunal made reference to that idea but found the first applicant did not demonstrate to the satisfaction of the tribunal why a Diploma of Project Management was necessary for this element of her business plan. The tribunal made reference to the first applicant’s future business studies and to her evidence that further qualifications would be very helpful in the future. The tribunal accepted that the first applicant’s father operates a business with her uncle but found they did not have any relevant business qualifications. The tribunal found the first applicant did not demonstrate the qualification would assist her in obtaining employment or improve her employment prospects in her home country. The tribunal found that there was no clear evidence to suggest that the future support for the first applicant’s business plans were dependent upon her obtaining the proposed qualifications. The tribunal found the first applicant did not demonstrate to its satisfaction the relevance of the proposed courses to those future studies.
The tribunal referred to the first applicant transitioning from educational studies, from travel and tourism to early childhood education to community services to business and then project management. The tribunal found the first applicant’s claimed links to her various fields of study were tenuous and that particularly in respect to her current proposed study, the tribunal is not persuaded that she has reasonable reasons for the constant change in discipline. The tribunal found the first applicant is proposing now over a decade of study for a career goal and it is not unreasonable to expect that she would have a basic business plan but found that this was in substance dependent on further discussions with her father. That finding is open on the material before the tribunal, in the submissions to which the Court has referred and the evidence during the hearing.
The tribunal referred to the first applicant’s claims to be setting up in rural areas but found there is no evidence of inquiries as to demand for the extensive business she proposes to establish. The tribunal found that the land had been acquired without regard to the proposed size of the business and approval for buildings or establishment of a childcare centre. The tribunal found it was questionable how much weight can be attributed to the claimed reasons for the acquisition. The tribunal found that there was little to demonstrate viability or actual planning for completion for the claimed future business and the tribunal was not satisfied that this was her genuine career intention.
The tribunal also identified concern as to the fact that the first applicant applied for the visa under review, having already completed two diplomas. The tribunal identified that she is now seeking to complete a third diploma. The tribunal identified ingenuine concerns that the first applicant was continually enrolling in short inexpensive courses at a similar level for the purpose of extending her time on shore. The tribunal found the first applicant’s plans in relation to her future childcare business were in their infancy and that the establishment of such a business remains several years in the future. The tribunal found the first applicant had not demonstrated in her employment to date a particular engagement in the field of childcare and workforce in general.
The tribunal referred to her limited relevant employment and referred to her employment in afterschool care and her contribution to the economy and that she provided evidence of 8.5 hours of employment. The tribunal observed, given her lack of engagement in childcare industry or any paid employment, the first applicant’s claimed concern about COVID-19, there are concerns about this casual work was obtained mainly for the purpose of assisting the application under review rather than a commitment to her business ideals. It was in that context that the tribunal found the stronger educational foundation for the further vocational studies is of limited value at the expense of actual experience to the desired regulatory regime in the home country. The tribunal is not persuaded as to the value of the first applicant’s proposed studies to a future or remuneration. The tribunal was concerned about the length of time the first applicant has already spent onshore, obtaining VET level of studies and that the first applicant had just started her diploma project.
The tribunal found that the courses appear to add little short or medium-term benefit to her future career and business plans and that throughout the period in which the visa has been under review, the first applicant has repeatedly sought to extend her time onshore.
The tribunal discussed at the hearing its concerns regarding these matters and identified that it did not have regard to the PRISM records. The tribunal expressly referred to the content of the post-hearing submissions and the difficulties presented by the separation from her family in Mauritius. The tribunal identified being of the same concerns as the delegate as to the venue of the first applicant’s course and the length of time she spent in Australia and her circumstances in Australia.
The tribunal found that it was not satisfied, considering all of the circumstances, that the first applicant has satisfied clause 500.2.1.2. The tribunal found the value of the first applicant’s proposed earliest courses and her lack of demonstrated knowledge in her program of study, her circumstances in Australia, the circumstances of her recent enrolment, and the length of time she spent and proposes to spend in obtaining a similar level of qualifications were of concern. The tribunal, taking into account the direction guidance, was not satisfied that the first applicant is a genuine applicant for entry and stay as a student because the tribunal was not satisfied the first applicant intends to genuinely stay in Australia temporarily, having regard to the evidence advanced and considered cumulatively by the tribunal.
The tribunal found, expressly, that it was not satisfied that the first applicant is a genuine temporary entrant for entry and stay as a student, as required by clause 500.2.1.2 and affirmed the decision under review.
SUBMISSIONS AND FINDINGS
In support of the applicants’ alleged errors in grounds 1, 2, and 3 the second applicant’s affidavit filed at the same time as the application identified incorrect information, which identified first a reference to the youngest daughter not being included. In that regard, the youngest daughter was not included in the visa application, and there is no proper basis to include her as a party to the proceedings, and she is not a proper party to the proceedings. There is no error in respect of incorrect information as identified in that first proposition. The Minister’s submissions dated 20 July 2023 and 24 October 2023 in reply to the applicants’ submissions dated 28 September 2023 submit there was compliance with s360, that the applicants were not deprived of an opportunity to meaningfully participate in the hearing, had a sufficient opportunity to give evidence and present arguments and that the tribunal complied with its procedural fairness obligations in Division 5 of Part 5. The minister responded to the alleged errors and the issues raised in the second applicant’s affidavit filed on 23 November 2022. The reply responded to the alleged errors as typographical and explained that there was no failure to consider. The minister also submitted that the bias contentions could not be made out. The Court for the reasons given accepts the minister’s submissions.
In relation to the second applicant’s affidavit, the next reference is to the typographical error in sub-paragraph 8 iii in respect of the date of a diploma, which was, in fact, one issued in September 2012 and was identified as March 2012. The error is patently immaterial and was a typographical error and gives rise to no jurisdictional error.
The next error that was identified is one in relation to a certificate of Diploma of Business, in the tribunal’s reasons referred to as being 10 November 2014 in paragraph 17(i) whereas the correct date is 10 November 2020. There is a similar error to this one in paragraph 17 also raised in paragraph 39, which makes apparent that it is just an immaterial typographical error given the reference to “due for completion”. On a fair reading of the tribunal’s reasons and the context in which the tribunal identified the relevant documents, it is apparent that they were typographical errors and did not identify any jurisdictional error.
The next error was one identified in respect of an incorrect year in paragraph 17 where, as the start date was 3 October 2022, it was incorrectly described as 3 October 2021. This again was a typographical error of no significant evidence and is not a jurisdictional error.
The next error identified by the applicants in the context of the hearing is an obvious error and is, no doubt, the source of much of the angst of the applicants in relation to the tribunal’s decision. Paragraph 19 of the tribunal’s reasons erroneously records:
The tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
There was no such Hindi interpreter, and that was conceded by the Minister. The error is not one that goes to the content of the applicants’ claims and submissions, but rather it is a basis upon which the applicants have identified in writing and submissions their concern that the tribunal was engaged in considering someone else’s application, or engaged in some form of irrelevant considerations that gave rise to a jurisdictional error. There is no doubt that the reference to the interpreter is an irrelevant consideration. But it is an irrelevant consideration in the context of which it is apparent from the tender of the transcript that there was a meaningful hearing, attended by the applicants and a real engagement with the submissions and evidence of the applicants.
The Court raised, at the commencement of submissions with counsel for the Minister, that this was an error that required the Court to give much closer attention to the issues of whether there was a genuine intellectual engagement by the tribunal with the applicants’ claims and evidence, and whether there was a jurisdictional error by reason of the taking into account irrelevant information. The Court has given the material and the transcript of hearing close attention in this regard to determine whether there was a failure by the tribunal to properly perform its statutory function. The Court finds there was no such failure by the tribunal. The reference to how the tribunal hearing was conducted was a procedural description reference in the context of process fairness. It is not a reference that went to the content of the grounds upon which the student visa application was applied for. It was not an error that misdirect the tribunal as to the salient facts. It was not a material error. Whilst the Court accepts it was irrelevant, it is not one that discloses a jurisdictional error by the tribunal.
The next ground that was referred to in the affidavit was an erroneous error in the first applicant’s mother’s name. That was an obvious typographical error and gives rise to no jurisdictional error. There was a reference to paragraph 28 and an assertion that the tribunal had misunderstood the extent of time that the applicant would be remaining in Australia in referring to an additional four years. The additional four years was clearly a reference back to the time period from the application for the student visa, the subject of these proceedings. It reflects no error by the tribunal. Further, even if it were said to be an error, it is immaterial and is not a jurisdictional error.
The next error raised by the applicants was the reference to there being no medical evidence to support the claim. This was an issue raised in the course of the hearing, and it is apparent that the applicants had an opportunity to, and did in fact, put on further information. The contention that the tribunal had to take steps to identify the need for medical information is misconceived. The tribunal had no such function. The tribunal raised the absence of medical evidence in relation to inability to undertake the course that the applicant complained of in relation to her pregnancy and her health. The observation was not that the tribunal was saying that there may not have been a problem with her health and her pregnancy.
The tribunal was identifying, correctly, the fact that there was no medical evidence to support an incapacity to undertake, online, from home, the course that she was seeking to advance. The reference to there being no medical evidence does not give rise to any relevant error, let alone a jurisdictional error. There is also a reference by the applicants to the impact of COVID. The impact of COVID is nothing more than an invitation to merits review. It does not identify any jurisdictional error. It is apparent from the tribunal’s reasons that the tribunal understood the context in which the first applicant was seeking to maintain that she was a genuine student, and that she had advanced reasons as to why it was that there was only a belated, recent engagement with her course.
The assertion of not giving enough consideration to particular aspects is nothing more than an invitation to merits review. The assertion of not giving enough consideration to being pregnant with the first applicant’s second child is, again, an invitation to merits review. The same issue is raised in relation to paragraph 31. It is crystal clear the tribunal understood that the first applicant was raising concerns about COVID from what the content of paragraph 30 and also the concern referred to in paragraph 31, that the applicants regarded their fear as to the consequences of COVID as of significance is, again, a merits review invitation, and does not identify any jurisdictional error.
The contention that there was an error, concerning the subject of COVID, is one where it is apparent the tribunal had a genuine, intellectual engagement with that fact, as well as the first applicant’s pregnancy. The issue relating to paragraph 32 is, again, one raised in respect of a failure to consider the impact of COVID. That again, is a request for merits review and does not identify any jurisdictional error. In paragraph 37, it is alleged that there was a misunderstanding of the first applicant’s evidence in relation to the future and her childcare business. It is not apparent that there has been any error by the tribunal in understanding her contentions as to a desire establish such a business.
However, the tribunal, as identified above, found on the whole of the evidence, including what the applicant had said about her intention to establish a childcare business, that it was not satisfied the applicant was a genuine temporary entrant. There is no jurisdictional error that arises from paragraph 37, as raised in the second applicant’s affidavit. In paragraph 39, there is again reference to the typographical error that has identified above and is not a jurisdictional error.
The Court is mindful of the fact that the issue of whether there has been a fair hearing requires a detailed consideration of the whole of the transcript and evidence as identified above. The Court has done so. The duplication of the typographical error was not material. It is in the context of the reasons as a whole an immaterial typographical and does not give rise to any jurisdictional error.
The reference to the moral impact of the visa refusal is nothing more than an invitation to merits review and does not identify any jurisdictional error. The applicants also put on submissions in which they sought to address, three grounds in the application for the constitutional writs. Those submissions, effectively, reagitate the same error that was identified in the affidavit, but also seek to expand upon the same in relation to the alleged failure to consider the explanations of the first applicant because she was also distracted by a toddler. The applicants’ complaint in that regard is nothing more than, again, an invitation to merits review. It is apparent that the tribunal had a genuine intellectual engagement with the whole of the applicants’ claims and evidence in its detailed decision, to which the Court has refers above.
The applicant maintained that her pregnancies were difficult and that during COVID, this was an explanation for her difficulties in relation to the pursuit of her studies and course. The reference to the explanation does not identify any failure by the tribunal to consider the whole of the applicants’ claims and evidence. The reference in the expansion to paragraph 31 and alleged failure to consider the fear and impact of COVID is, again, a reference to invitation to merits review and does not establish any jurisdictional error.
The reference to the alleged failure to consider the further use of study, being because of COVID, again, reagitates the same invitation to merits review. The genuineness of the applicants’ fear because of COVID does not give rise to the position being that the first applicant is a genuine student and is an invitation to merits review. It is apparent that the tribunal understood and took into account the COVID period in respect of the applicants’ claim for the student visa. The other references to paragraph 21 and 41, as expanded, do not identify any relevant error by the tribunal. In relation to paragraph 34, there is reference to the applicants’ evidence being misunderstood in relation to reliance upon her father. It is the case that the tribunal made a reference in paragraph 33 to the first applicant’s evidence that she will rely on the assistance and guidance of her father.
That observation by the tribunal, is one made in the context of a submission having been provided prior to the hearing, relevantly:
Her father is a renowned, successful businessman, importer, wholesaler and distributor of spices all over the island. Being a successful and experienced business owner, the applicant’s father will continue to help the applicant to set up her business and address the relevant requirements for the local government in Mauritius. The applicant will continue to have her father’s full support and financial backing.
It was apparent during the course of the hearing that the first applicant also made reference to the role to be undertaken by her father. The observations by the tribunal in relation to the father’s support were open on the evidence before the tribunal, and do not reflect any misunderstanding of the first applicant’s evidence.
The applicants’ written submissions also make reference to what occurred at the commencement of the hearing, and this was developed orally, where the tribunal raised its displeasure at the belated provision of material by the migration representative on behalf of the applicants. It was perfectly open to the tribunal to do so. It is apparent that there was a communication that the applicants had received at the time of the invitation to attend the hearing that identified when submissions were to be received. The belated awaiting of the record relating to the block of land does not explain why there had not been compliance with the requirements of the tribunal in respect of submissions. The Tribunal member, after entirely appropriate introductory remarks and having the applicants affirmed said “I confirm that I received submissions this morning. That is not the behaviour expected of a genuine applicant seeking review. It makes my role in assessing your current (sic) role in assessing your current circumstances extremely difficult if I don’t have the relevant information necessary to make a positive decision. Now, there are procedural guidelines for the filing of documents and they are expected to be filed seven days prior to the (sic0 previous hearing. You’ve got additional time due to the short notice of a public holiday. They’re there to ensure that the information necessary to make a decision is available.” This was followed by an explanation of the process and a request as to understanding which was followed by an “Okay” consistent with non-verbal confirmation of understanding. The transcript reveals responsive questions and answers and a break when requested.
The late service of the material was a justifiable reason for the tribunal to express its displeasure. The expressing of its displeasure is not conduct by reason of which a fair-minded a lay observer might reasonably apprehend that the tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. It was a rational and logical issue to be raised by the tribunal where there has been served belated material and the explanation was wanting. The applicants both contended that there was a tone to what was said by the tribunal at the start that created a concern as to whether the tribunal Member was approaching the matter with an impartial and an independent approach. The failure to comply with the directions in respect of the filing of material of itself would justify a level of angst expressed in the tone of the tribunal to the migration agent, about that failure by the migration agent and given the want of any proper explanation. On a fair reading of what was said even in a strong tone, it was directed to the non-compliance by the agent and was not conduct that supports a logical or rational reason why the tribunal would not determine the matter on its merits. A fair-minded lay observer would be aware of the requirement for compliance with timetables for provision of material and the obvious difficulty that belated provision would cause. The fair-minded lay observer would not in the context of that failure regard a strong tone on the topic of substantiable non-compliance by the migration agent and such tone directed to the migration agent, taking into account what was actually said at the commencement of the hearing as meeting either might test.
Further, having considered the transcript as a whole there is nothing to suggest that the tribunal Member did other than approach the hearing with an open mind reasonably capable of persuasion as to the merits. Indeed, the very detailed reasons of the tribunal, to which the Court refers above, entirely support the tribunal approaching the matter with an open mind capable of persuasion as to the merits. Having carefully looked at the transcript, the Court does not accept that the hearing was conducted otherwise than fairly with an open mind as to the merits. The Court finds that the applicants did have a real and meaningful hearing, and that the tribunal had a genuine intellectual engagement with the whole applicants’ claims and evidence.
The explanation from the representative about awaiting a document was not a satisfactory explanation for why the bulk of the submissions had not been received. Those submissions included the reference to the father’s role. The applicant also asserted that she felt intimidated and panicked as soon as the hearing started because of the issue in relation to the late submissions. There is nothing on the face of the tribunal to suggest that the first applicant was not able to meaningfully engage in the hearing. There are two references in the course of the hearing to her being nervous T23.44, T25.7 and one reference to a bit confusing T23.44. It is apparent in the context of where she identified such comments that the tribunal gave the first applicant an opportunity to continue to give evidence and present arguments.
The Court does not accept that the first applicant was unable to meaningfully participate because of any anxiety, confusion or nervousness by reason of the initial comments made concerning the submissions. Indeed, the first applicant’s evidence is entirely consistent with the applicant being able to meaningful participate in that hearing. The first applicant’s assertions of feeling uncomfortable and at a disadvantage do not, in fact, reflect any step in the course of the hearing on the transcript where the applicant identified an inability to be able to continue with the hearing. This topic of being uncomfortable was expressly raised before the tribunal in the first applicant’s own statutory declaration that was attached to the submissions that were provided on 5 October that included a statement:
I was extremely nervous since the start of the hearing and made many mistakes in explaining my situation. I could not explain myself clearly. Now that I am more calm and less nervous, I am writing my statement to clarify mistakes made in hearing.
It is perfectly clear that to the extent there were mistakes, the first applicant not only took advantage of the opportunity to put on further information, but that the first applicant also sought to address the mistakes that she had made. There was no legal unreasonableness in the conduct of the hearing in the context of the first applicant raising that she was nervous or confused and the tribunal Member continuing with the hearing. The issue of the applicant’s nervousness was expressly referred to in the tribunal’s reasons, addressed above. Further, the first applicant having taken advantage of the opportunity to address what she said was her nervousness, removes any materiality or procedural unfairness in the conduct of the hearing and review.
The Court does not accept that there was any material procedural unfairness in the conduct of the hearing, or, indeed, that the first applicant’s nervousness prevented the first applicant from meaningfully participating at the hearing. The content of the transcript is inconsistent with that proposition. To the extent there is a suggestion that there was a refusal to allow a post-hearing submission, the tribunal’s reasons made clear that it took into account the post-hearing submissions and the observations as to what occurred at the end of the hearing identify no relevant error by the tribunal in the process or conduct of the review. To the extent that the applicant complains that she felt extremely uncomfortable and believed that the member was not being fair and just, it is apparent that the tribunal did, in fact, take into account the further statutory declaration and material provided by the first applicant, and that the applicant addressed her nervousness, and that the tribunal took into account and allowed her nervousness as a relevant consideration in relation to the findings made.
The assertion of the hearing not being fair or just is not, on the face of the transcript, made out. The tribunal complied with its statutory obligations in relation to the invitation to attend a hearing, and on the face of the transcript, the tribunal complied with the statutory obligations of procedural fairness in the conduct of the hearing itself. The first applicant’s disagreement with it being fair or just is, again, an invitation to merits review and does not make out any jurisdictional error. The first applicant made reference to mistakes, which the Court has already addressed, none of which, collectively or individually, persuade the Court that the applicants did not have a real and meaningfully hearing, or that the tribunal failed to discharge its statutory obligations in the conduct of the review, or failed to have a real and meaningful engagement with the applicants’ claims and evidence.
The Hindi error in respect to the interpreter does provide a need for a very close and nuanced approach in looking at the other alleged errors, both individually and cumulatively. The Court has done so, and none of those other alleged errors, individually or cumulatively, persuade the Court that there was, in fact, a failure by the tribunal to have a real and meaningful engagement with the applicants’ claims and evidence, to properly perform its statutory duty or to provide a procedurally fair hearing. The applicants also orally raised their concerns in respect of the errors and mistakes in the reasons to which the Court has referred. The second applicant in particular raised an issue about the indistinct entries that appear in the transcript that was tendered into evidence. The second applicant submitted that those references to indistinct gave them concern as to whether or not the tribunal Member had, in fact, understood the whole of their claims in evidence.
The transcript is one where it is apparent that both in relation to the applicants, as well as the member, there are 93 indistinct entries over 27 pages of a 30 page transcript in respect of a typographical recording reproduction problem which has been described as indistinct. There is no evidence that any of the references to indistinct were of any significance. The context does not support any recorded indistinct entry as being material or as conveying any identified misunderstanding. No recording has been tendered to identify any alleged materiality. The Court has looked at each of those references individually and collectively, and is not persuaded that the typographical difficulty in transcribing the oral recording supports any finding that there was other than a real and meaningful hearing.
The Court finds the references to indistinct do not support a finding of non-compliance with s425(1) of the Act. The deficiencies do not support a finding that the tribunal Member did not have an intellectual engagement with the applicants’ claims and evidence, or that the Tribunal had failed to understand the applicants’ claims and evidence. The detailed reasons of the tribunal, as addressed above, support the tribunal having understood the applicants’ claims and evidence. The deficiencies do not support this Court finding that a different conclusion might have been reached had the deficiencies not occurred.
The applicants’ oral submissions made reference to the errors to which the Court has already referred, including the topic of the tone of the Member. For the reasons the Court has given, none of the matters raised by the applicants, on their face, make out any jurisdictional error.
In relation to ground 1 in the application, the Court finds that the applicants had a real and meaningful hearing, and no unfair hearing is made out. No case of actual bias or apprehended bias is made out. The applicants were invited to attend the hearing to give evidence and present arguments compliance with s425 and the transcript and reasons support the finding made by the Court that the Tribunal complied with its statutory powers in the conduct of the review. The Court has explained above why each of the discrepancies or alleged errors advanced by the applicants fail to support any jurisdictional error. No jurisdictional error is made out in relation to ground 1.
In relation to ground 2, the Court does accept that there was an error in relation to the Hindi interpreter that required the Court to have a close and careful consideration of the whole of the applicants’ claims and evidence, and the Court has done so.
That interpreter error, of itself, related to a description of the procedural process and was not material. It was not incorrect information that played any part in the review or discharge of the statutory obligations of the tribunal. Having taken into account the other errors, both singularly and collectively, the Court is not persuaded that there has been any material error by the tribunal in the content of the reasons that support a finding that the tribunal misunderstood the applicants’ evidence and claims. The other errors were, for the reasons the Court has addressed above, not material and no jurisdictional error is made out by reason of ground 2. The Court adds that the irrelevant erroneous procedural description was not a consideration material to the outcome of the review and is not an irrelevant consideration of a kind that establishes a jurisdictional error. The reference to the Hindi interpreter being irrelevant is not one that conditioned the exercise of the statutory power by the tribunal and was no more than an unfortunate mistake that does not reflect the tribunal failing to perform its statutory function in the conduct of the review. It does identify, as the Court has earlier said, the reason for concern by the applicants, but it does not, taking into account the whole of the material, identify a relevant error that amounts to a jurisdictional error. No jurisdictional error is made out by ground 2.
In relation to ground 3, appears to focuses on the erroneous reference to the Hindi interpreter. None of the other errors referred to, or that erroneous interpreter reference, support the proposition that the decision relates to another person or a different hearing. It is apparent from the content of the tribunal’s reasons, as expanded upon above, that the tribunal had a genuine intellectual engagement with the whole of the applicants’ claims and evidence. The Court has also explained above why the erroneous interpreter reference fails to make out any jurisdictional error. No jurisdictional error is made out by ground 3.
For the reasons given above, the Court finds that the applicants have failed to make out any jurisdictional error as alleged in the application for review. The Court finds the application for review must be dismissed. Accordingly, the Court makes the above orders.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 3 November 2023
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