Kumudhumale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 359
•14 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumudhumale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 359
File number: MLG 2513 of 2016 Judgment of: JUDGE KENDALL Date of judgment: 14 December 2021 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicants were afforded procedural fairness – whether the Tribunal applied the wrong legal test – whether the Tribunal failed to make “express findings” – whether the Tribunal’s error in referencing the first applicant’s country of citizenship amounts to jurisdictional error – whether COVID-19 “impacted” the first applicant’s ability to “enrol in further studies” – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016
Migration Regulations 1994 (Cth), cll 572.211 and 572.227 of Schedule 2, Part 572 of Schedule 2
Cases cited: Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Kim v Minister for Immigration and Anor [2008] FMCA 1577
Mercantile Mutual Life insurance Co Limited v Australian Securities Commission [1993] 40 FCR 409
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
WZATI v Minister for Immigration & Border Protection [2015] FCA 923
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of hearing: 13 December 2021 Place: Perth Applicants: First applicant in person Counsel for the first Respondents: Mr J Nunez Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2513 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHOTTI ARACHCHIGE SUBODHA KUMUDHUMALE
First Applicant
LEWWANDUWA WITHANAGE LAHIRU AKALANKA SENARATHNE
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
14 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The first applicant is a citizen of Sri Lanka (Court Book (“CB”) 4 & 29-30). The second applicant is her husband (CB 10).
On 28 September 2015, the second applicant was granted a Temporary Work (Long Stay Activity) (Class GB) (Subclass 401) visa (the “GB 401 visa”). The first applicant was included in the GB 401 visa application (CB 37). The applicants arrived in Australia on 15 October 2015 (CB 10 & 16) as holders of those visas.
The GB 401 visas allowed the applicants to remain in Australia until 30 April 2016 (CB 37).
On 24 February 2016, the first applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) (CB 3-25). She did so with the assistance of a registered migration agent (CB 26-28). The second applicant was included in that application (CB 10). The applicants provided a bundle of supporting documents with that visa application
(CB 26-67).
On 15 March 2016, the applicants (through their registered migration agent and via email) provided further supporting documents (CB 72-75). These documents included a letter of acceptance relating to the first applicant’s study from the Baxter Institute (CB 76), various Overseas Student Confirmation-of-Enrolment forms (“CoEs”) (CB 77-80) and copy of the visa grant notice relating to the GB 401 visa (CB 81-82).
On 18 March 2016, the then Department of Immigration and Border Protection (the “Department”) asked the first applicant to provide more information in relation to the visa application, as follows (CB 93):
Initial student visa while in Australia
As you are an Assessment Level 3 applicant, you are not able to be granted an initial student visa in Australia unless exceptional reasons exist for the grant of the visa.
Exceptional reasons may include but are not limited to:
• the grant of the visa would be of benefit to Australia
•the applicant is a family member of a departing temporary resident, has been successfully studying in Australia for at least one (1) year and wishes to complete their current course of study or undertake further studies
•the applicant is a holder of an Occupational Trainee (subclass 442) visa, a Visiting Academic (subclass 419) visa, or a Training and Research (subclass 402) visa in the Occupational Trainee stream or the Research stream, and wishes to change to a student visa to undertake further studies in Australia.
Please provide a statement explaining your exceptional reasons for the grant of an initial student visa in Australia and any supporting evidence.
On 7 April 2016, the applicants’ agent provided the Department with a statement from the first applicant dated 5 April 2016 (CB 101-103). That statement set out the following “exceptional reasons” for the grant of the visa (CB 103):
(a)the first applicant chose to complete further studies in hairdressing and become a professional hairdresser (with a quality education obtained in Australia);
(b)she believes the visa will benefit Australia by providing revenue to the Australian economy through her course enrolment;
(c)by working limited hours whilst studying, she will serve the Australian community and her experience in Sri Lanka will benefit an Australian employer; and
(d)the second applicant will be able to continue to contribute to Australian sports, noting he had been serving Australian sport by playing cricket.
On 16 May 2016, the applicants’ representative provided further supporting evidence to the Department comprising a confirmation of completed Australian studies, an extended CoE and confirmation of student health cover (CB 118-129).
On 19 May 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 135-140). The delegate was not satisfied that the first applicant had “established exceptional reasons for the grant of the visa” and, as such, did not meet cl 572.227 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 137).
On 1 June 2016, the applicants applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 141-142).
The applicants attended a hearing before the Tribunal on 11 October 2016 with their representative (CB 173-176). At that hearing, the applicants provided further documents to the Tribunal, including a letter from Coomoora Cricket Club Inc, educational records and CoEs (CB 177-185).
On 20 October 2016, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 190-195).
On 15 November 2016, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is six pages long and spans 34 paragraphs.
The Tribunal began by outlining the type of visa under review and detailed the applicants’ migration history. The Tribunal noted that the applicants had applied for a Student (Temporary) (Class TU) visa and that the “relevant subclass in this case is 572” (at [1]-[2]).
The Tribunal then broadly outlined the legislative criteria for a Subclass 572 visa (at [3]) and noted that the delegate had refused to grant the applicants the visa because the first applicant did not satisfy cl 572.227 of the Regulations (at [4]).
The Tribunal confirmed that the applicants appeared at a hearing before it on 11 October 2016 (at [5]) and were represented by a registered migration agent (at [6]).
The Tribunal found, based on the first applicant’s CoE evidence, that the first applicant’s proposed study was in the VET sector and that the applicable subclass was 572 (at [9]).
The Tribunal noted that, for student visa applications made in Australia, certain classes had a further “time-of-decision” requirement and that applicants in those circumstances need to establish exceptional reasons for the grant of the visa. The Tribunal noted that those requirements were set out in cl 572.227 of the Regulations and extracted those provisions (at [10]).
The Tribunal also highlighted that the applicants’ evidence indicated that the first applicant was the holder of the GB 401 visa at the time of the visa application and that the first applicant held a Sri Lankan passport (at [12]). On the basis that the first applicant held the GB 401 visa, the Tribunal found that cl 572.211 of the Regulations had been met at the time of the visa application (at [13]).
The Tribunal then stated:
14.As suggested at hearing, for a 572 visa, and as the holder of a passport of India, the Gazette Notice which determines the assessment level to which the applicant is subject indicates that the applicant's assessment level is 3, and not 1, and the applicant is required to satisfy cl.572.227 and to establish exceptional reasons for the grant of a Subclass 572 visa.
The Tribunal noted that, when considering whether the applicant had established “exceptional reasons” for the grant of the visa, it had had regard to the findings in Kim v Minister for Immigration and Anor [2008] FMCA 1577 (“Kim”) at [7], [13]-[14] and [29]-[30]
(at [15]-[17]).
The Tribunal also noted that the requirements of cl 572.227 of the Regulations had been explained to the first applicant at the hearing (at [18]) and that the first applicant’s assessment level was 3. The first applicant thus needed to demonstrate “exceptional reasons” for the grant of a student visa onshore (at [19]).
The Tribunal confirmed that the first applicant was invited to outline any matter she felt demonstrated “exceptional reasons” why the visa ought to be granted (at [20]) and was told that, applying the case of Kim, unless exceptional reasons could be identified, the visa criterion would not be met (at [21] & [22]).
The Tribunal then detailed the applicant’s evidence in that regard, as follows:
23. Relevantly, the applicants made the following points:
a.The applicant valued her proposed VET sector study in hairdressing and salon management which is already underway;
b.Her enrolment was a source of revenue or income for Australian business;
cShe would use her experience in hairdressing from Sri Lanka to benefit Australia;
d.The applicant had arrived in Australia on the 401 visa, which was held by her husband for the purposes of playing cricket in Australia;
e.As a dependent student visa holder her husband would continue to serve Australian cricket - presently as a spin bowling and assistant coach at Coomoora Cricket Club;
f.They were unaware of the visa criterion now in issue when they applied for the visa.
The Tribunal continued:
25.The Tribunal does not consider that intending to undertake proposed study of value to one's future - which is a requirement in any event of the student visa and its attendant visa conditions - is an exceptional reason to be granted the visa.
26.As suggested to the applicant, the Tribunal does not consider being ignorant of the visa criterion, or having received poor, inaccurate or incomplete advice, to constitute exceptional reasons for granting the visa.
27.The Tribunal does not consider that matters of convenience (in making the application in Australia and not travelling offshore to make the application) constitute exceptional reasons for granting the visa.
28.Likewise, the paying of tuition fees and other injections of money into the economy are an ordinary and natural result of living in Australia and studying with a fee-taking provider. So too is the paying of income taxes, if one earns more than any applicable tax-free threshold. They are not exceptional reasons for the granting of the visa.
The Tribunal accepted that the second applicant “ha[d] value” as a cricketer, noting the reference from the president of his cricket club. However, the Tribunal determined that the second applicant’s sporting skills had allowed the applicants to stay in Australia as holders of the GB 401 visa. The Tribunal also did not consider this to be an exceptional reason for granting the visa or for the applicants’ continued stay in Australia (at [29]).
The Tribunal ultimately found that there were no exceptional circumstances for granting the visas and, as such, the first applicant did not meet cl 572.227 of the Regulations (at [31]).
The Tribunal then explained that the other subclasses within Class TU contain equivalent criteria requiring the establishment of exceptional reasons and, as a result, the first applicant failed against the relevant criteria in each of the subclasses (at [32]).
On the basis of the above, the Tribunal affirmed the decision not to grant the applicants the visas (at [33]-[34].
PROCEEDINGS IN THIS COURT
In their application for judicial review filed on 15 November 2016, the applicants provides two grounds of review, as follows:
1.The Administrative Appeals Tribunal did not afford us procedural fairness.
2.The Administrative Appeals Tribunal applied the wrong legal test.
The applicants filed two sets of written submissions. The first submission totals 60 pages and was filed on 19 September 2019. After setting out some background information, legislation and definitions of “exceptional reasons”, the applicants outlined eight “grounds for exceptional reasons”. Some of those reasons were provided to the Tribunal. The remainder were not advanced before the Tribunal and many of the events referred to in the “grounds” post-dated the Tribunal’s decision.
The first submission also attaches a number of supporting documents, comprising educational records and certifications, income tax returns, payslips letters of support and medical and birth records relating to the applicants’ son.
Unfortunately, the material attached to the first submission is irrelevant in relation to the judicial review proceedings before this Court. The majority of the attachments post-date the Tribunal’s decision. To the extent that there are a few pages which pre-date the Tribunal’s decision, there is no evidence before the Court to suggest that those pages were before the Tribunal. It is generally not open to the Court, on a judicial review application, to consider material which was not before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. That principle applies here.
The second written submission was filed by the applicants on 6 September 2021. Relevantly, the applicants note that the Tribunal incorrectly identified the first applicant’s country of citizenship (by reference to her passport) as India (rather than Sri Lanka). This issue will be addressed by the Court below.
The materials before the Court include the application for judicial review and supporting affidavit filed on 15 November 2016, a Court Book numbering 195 pages (Exhibit 1), written submissions filed by the Minister on 19 July 2017 and two sets of written submissions filed by the applicants on 19 September 2019 and 6 September 2021.
The first applicant appeared before this Court without legal representation. She was assisted by an interpreter in the Sinhalese and English languages. The first applicant spoke on behalf of the second applicant. The Court confirmed that she had received a copy of the Court Book and the Minister’s written submissions and that she had both documents in front of her.
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained that she was still pursuing her studies and had completed certificates 3 and 4 but wanted to complete her diploma and degree. She also stated that she had worked in Sri Lanka for nearly six years, had “learned a lot of skills in her field” and thought she should be given an opportunity to use those skills to the benefit of Australia. She also explained that, since 2017, she has been working on a full time basis and, even throughout the COVID pandemic, continued to work (even when others did not). She feels she has contributed a lot to, and done a lot for, Australia. The first applicant also stated that the second applicant (her husband) is also making a contribution to Australia as a restoration technician and “through his sports”.
Unfortunately, the first applicant’s oral submissions do no more than seek impermissible merits review of the Tribunal’s decision. They do not address the issue of jurisdictional error.
CONSIDERATION
Relevant legislative provisions
The applicants applied for the visa on 24 February 2016.
At the time of the application, the criteria which needed to be satisfied in relation to a Subclass 572 visa were contained in Part 572 of Schedule 2 of the Regulations.
In circumstances where an applicant applies for a student visa in Australia, and where that applicant has not previously held a student visa, the criteria set out in cl 572.227 of the Regulations must be met.
Clause 572.227 of the Regulations relevantly provides:
572.227
If:
(a) the application was made in Australia; and
(b)subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and
(c)at the time of application, the applicant met the requirements of clause 572.211:
(i)as the holder of a visa of one of the following classes or subclasses:
…
(P)Temporary Work (Long Stay Activity) (Class GB);
the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.
Clause 572.227a of the Regulations provides:
572.227A
For paragraph 572.227(b), the highest assessment level does not include assessment level 1.
The definition of “highest assessment level” is set out in reg 1.03 of the Regulations, which relevantly provides:
1.03 Definitions
In these Regulations, unless the contrary intention appears:
…
highest assessment level, for an applicant for a student visa, means:
(a)if the applicant proposes to undertake a single course of study that is a registered course—the assessment level for that course of study; and
(b)if the applicant proposes to undertake 2 or more courses of study that are registered courses and that do not include an ELICOS—the assessment level for those courses which is the highest number from 1 to 3; and
(c)if the applicant proposes to undertake 2 or more courses of study that are registered courses and that include an ELICOS—the assessment level for those courses which is the highest number from 1 to 3, not including the ELICOS course.
On 14 April 2016, amendments were made to the Regulations by way of the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (the “2016 Amendments”). Schedule 4 of those amendments repealed Part 572 of Schedule 2 of the Regulations and commenced on 1 July 2016.
The transitional provisions in the 2016 Amendments were set out in Schedule 5 and relevantly provide:
5404 Operation of Schedule 4
(1)The amendments of these Regulations made by Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (other than items 44, 48 and 49 of that Schedule) apply in relation to an application for a visa made on or after 1 July 2016.
(2)The amendments of these Regulations made by items 44, 48 and 49 of Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 apply in relation to a visa granted before, on or after 1 July 2016.
Note:Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 commences on 1 July 2016.
As the application in this matter was made on 24 February 2016 (that is, prior to 1 July 2016), the 2016 Amendments do not apply to this matter and the applicants must comply with the criteria set out in Part 572 of Schedule 2 of the Regulations (as it read prior to the 2106 Amendments).
Ground 1
Ground 1 provides:
1. The Administrative Appeals Tribunal did not afford us procedural fairness.
Although not entirely clear, it appears the applicants are contending that the Tribunal did not comply with the exhaustive procedural fairness obligations set out in Division 5 of Part 5 of the Act.
The Court disagrees and notes, relevantly, as follows:
(a)the applicants were invited to, and attended, a hearing before the Tribunal where the applicants were able to provide evidence, present arguments and meaningfully participate in the hearing as required by s 360 of the Act;
(b)the applicants were assisted by their registered migration agent at that hearing;
(c)the determinative issue (whether the applicants satisfied cl 572.227 of Schedule 2 of the Regulations) was the same as assessed by the delegate. There was thus no requirement for the applicants to be given further notice of the issue: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63;
(d)there is no evidence before the Court to suggest that the applicants requested an adjournment or an extension of time in which to provide any further information and there does not appear to have been a need for the Tribunal to exercise any relevant discretion in that regard; and
(e)on the face of the Tribunal’s decision and reasons, there is nothing to suggest that the Tribunal displayed actual or apprehended bias. The first applicant was invited, on numerous occasions, “to speak of any matter” which would “demonstrate exceptional reasons” for the grant of the visa (at [20] & [22]).
The Court is satisfied that the Tribunal did not breach any procedural fairness obligations. On the evidence before the Court, the applicants were given a proper and meaningful hearing and there was no error in the review process conducted by the Tribunal.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
2. The Administrative Appeals Tribunal applied the wrong legal test.
The applicants have not indicated what “legal test” was applied incorrectly.
In this matter, the Tribunal considered the applicants’ visa application and identified that the relevant subclass was Subclass 572 (at [2] & [9]). The Tribunal went on to review the relevant legislative provisions relating to that visa subclass and noted that cll 572.211 and 572.227 of the Regulations needed to be satisfied (at [3]-[4]).
The Tribunal extracted the relevant visa criteria set out in cl 572.227 of the Regulations (at [10]-[11]), found that the provisions of cl 572.211 of the Regulations had been met at the time of application (at [13]) and identified that, in order to satisfy cl 572.227 of the Regulations, the applicants needed to establish “exceptional reasons” for granting of the visa (at [14]).
The Tribunal also considered relevant legal authorities with respect to relevant considerations when deciding whether “exceptional reasons” exist for granting applicants a visa of this type (at [15]-[17]).
As outlined above, the criteria for the grant of the visa are contained in Part 572 of Schedule 2 of the Regulations. The correct legal test in relation to this matter was whether or not the applicants met the requirements of cl 572.227 of the Regulations.
The Tribunal provided the applicants with the opportunity to demonstrate that exceptional circumstances existed to warrant the granting of the visa and then assessed the evidence given by the applicants.
No error arises in this regard and ground 2 is, accordingly, dismissed.
Otherwise
Whether the Tribunal failed to make “express findings”
In written submissions filed on 19 July 2017, the Minister noted that the Tribunal in this matter made no express finding in relation to one of the “exceptional reasons” for the grant of the visa provided by the first applicant – that is, that the first applicant would “use her experience in hairdressing from Sri Lanka to benefit Australia”.
The Minister submits that the Tribunal was aware of the claim (as it was included in the Tribunal’s summary at [23] of its reasons) and that no jurisdictional error arises in this regard, even though it is not specifically addressed by the Tribunal as a separate and distinct category.
The Minister’s submissions relevantly provide:
•the Tribunal made a general conclusion at [30] that it did not consider that any combination of the reasons proffered, or all of them taken together cumulatively, constituted exceptional reasons for granting the visa. In circumstances where the Tribunal was clearly aware of the applicant's claim relating to her experience in hairdressing from Sri Lanka from its summary at [23], the Tribunal's reasons should be read into this conclusion that the Tribunal did have regard to this reason advanced by the applicant.
•in the alternative, the Tribunal considered this claim in findings of greater generality. The Tribunal plainly considered the impact of the applicant's employment in Australia on the Australian economy, at [28]. In circumstances where the Tribunal had previously noted at [23] that the applicant had stated she would use her experience in hairdressing from Sri Lanka to benefit Australia, this was only incidental to or, as the Tribunal described it, a 'natural result of living in Australia and studying'. This fed into the Tribunal's findings at [28].
The applicants, in written submissions filed on 6 September 2021, also seem to address this issue, arguing:
•Australia would benefit from the hairdressing skills she acquired in Sri Lanka.
•there was some evidence in support of this claim being a letter (at CB 50) which states that the first applicant completed a diploma in hairdressing in 2009 at Salon Jacqui in Negombo. This evidence was not referred to by the Tribunal.
The Tribunal, in its reasons, outlined that the exceptional reasons for the grant of the visa, as articulated by the applicants, were as follows (emphasis added):
23. Relevantly, the applicants made the following points:
a.The applicant valued her proposed VET sector study in hairdressing and salon management which is already underway;
b.Her enrolment was a source of revenue or income for Australian business;
c.She would use her experience in hairdressing from Sri Lanka to benefit Australia;
d.The applicant had arrived in Australia on the 401 visa, which was held by her husband for the purposes of playing cricket in Australia;
e.As a dependent student visa holder her husband would continue to serve Australian cricket - presently as a spin bowling and assistant coach at Coomoora Cricket Club;
f.They were unaware of the visa criterion now in issue when they applied for the visa.
To the extent that the applicants submit that the Tribunal did not reference a letter regarding the first applicant’s completion of diploma qualifications in Sri Lanka, the Tribunal was not obliged to refer to every piece of evidence before it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]. Further, a failure by the Tribunal to specifically refer to any piece of evidence does not necessarily mean that it has not been considered: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34].
In this matter, it is clear (based on the summary provided by the Tribunal) that the Tribunal was aware of the applicant’s claim to have previous work experience in Sri Lanka that would be of value to Australia.
The Tribunal did not make any express findings in relation to the first applicant’s hairdressing experience in Sri Lanka. It did not, for example, cast doubt on the first applicant’s evidence that she had work experience. Rather, the Tribunal determined as follows (emphasis added):
30.Finally, the Tribunal does not consider that any combination of the reasons proffered, or all of them taken together cumulatively, constitute exceptional reasons for granting the visa.
The question for this Court is: is this enough?
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, the Full Court of the Federal Court contemplated the need for an “express finding” and, relevantly, found as follows (emphasis added):
47The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected….
Here, the first applicant’s hairdressing experience in Sri Lanka was identified by the Tribunal as being an “exceptional reason” raised by the applicants (at [23]). The Tribunal then went on to make findings in relation to all of the reasons provided by the applicants and, relevantly, did not consider that any combination of the reasons provided (or all of the reasons taken cumulatively), constituted exceptional circumstances for granting the applicants the visas.
Contextually, it was unnecessary for the Tribunal to make a specific finding in relation to the first applicant’s hairdressing experience in Sri Lanka because, as outlined above, it was noted by the Tribunal as an issue and was ultimately subsumed in the Tribunal’s final determination at [30].
No error arises in the Tribunal’s failure to make express findings in this regard.
Tribunal’s reference to India as the first applicant’s country of citizenship
As outlined above, the applicants (in written submissions filed on 6 September 2021) note that the Tribunal incorrectly identified the first applicant’s country of citizenship (by reference to her passport) as India (not Sri Lanka).
It is noted that the Tribunal determined as follows (emphasis added):
14.As suggested at hearing, for a 572 visa, and as the holder of a passport of India, the Gazette Notice which determines the assessment level to which the applicant is subject indicates that the applicant's assessment level is 3, and not 1, and the applicant is required to satisfy cl.572.227 and to establish exceptional reasons for the grant of a Subclass 572 visa.
The applicants concede that, this mistake, even if it was not simply a typographical error, did not substantively affect the Tribunal’s decision as both India and Sri Lanka have an applicable assessment level of 3. The applicants also cite case law (Mercantile Mutual Life insurance Co Limited v Australian Securities Commission [1993] 40 FCR 409 and Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 at 16-17 [34]) as authority for the proposition that, “a mistaken assertion of the source of a relevant power or an incorrect assumption about that source does not necessarily invalidate an administrative decision”.
At the hearing, the Minister characterised the error as a “mistake” or a “slip” but submitted that “nothing turns on it”.
The Court agrees. The error here, while unfortunate, is no more than typographical in nature. It is clear from the remainder of the Tribunal’s decision that the Tribunal referenced the correct country of citizenship. Relevantly, the Tribunal correctly identifies that the first applicant holds a Sri Lankan passport, as follows (emphasis added):
12.The applicant's evidence indicates that the application was made in Australia while the applicant was the holder of a Class GB, Subclass 401 visa and the applicant holds a passport from Sri Lanka.
The reference to India is is an unfortunate oversight. It does not, however, amount to jurisdictional error on the part of the Tribunal.
COVID-19
The applicants also raise the current COVID-19 pandemic as an issue which, they say, “impeded” the first applicant’s ability to “enrol in further studies”.
The Court notes that the first applicant’s enrolment (or lack thereof) was not an issue before the Tribunal and the Tribunal’s decision was finalised well before the emergence of COVID-19. The Court accepts that the COVID-19 pandemic has proven extraordinarily frustrating for many applicants in similar situations and sympathises with the applicants in this regard. However, this is not an issue with which the Court is able to assist and no error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicants on 15 November 2016 and the submissions filed by the applicants on 19 September 2019 and 6 September 2021, fail to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 14 December 2021
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