Liu v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 831
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liu v Minister for Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 831
File number(s): SYG 133 of 2020 Judgment of: JUDGE LAING Date of judgment: 14 September 2023 Catchwords: MIGRATION - application for judicial review of a decision by the Administrative Appeals Tribunal affirming refusal of a student visa – whether the Tribunal failed to consider the applicant’s evidence and/or relevant considerations – whether the Tribunal’s reasoning was open to it on the material before it – whether the Tribunal’s misunderstanding of the applicant’s evidence regarding her community ties resulted in jurisdictional error – application succeeds Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Schedule 2 cl 500.212
Cases cited: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 30 August 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the Respondents: Mr K. Eskerie of Sparke Helmore Lawyers ORDERS
SYG 133 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RISTINA LIU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing the decision of the second respondent dated 17 December 2019 into this Court and quashing it.
2.A writ of mandamus issue directing the second respondent to re-determine the review according to law.
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 LAING:
Before the Court is an application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
BACKGROUND
The applicant is a citizen of the Republic of Indonesia (Indonesia). She applied for the student visa that is the subject of these proceedings on 28 November 2017.
The Delegate refused the application on 7 February 2018 on the basis that the applicant did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant applied for review by the Tribunal on 16 February 2018.
On 17 December 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant's circumstances; and
(ii)the applicant's immigration history; and
(iii)if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in her home country, potential circumstances in Australia and the value of the course to her future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
THE TRIBUNAL’S DECISION
The Tribunal considered that the applicant had not “objectively demonstrated any significant research into the availability of courses in her home country.” The Tribunal was therefore not prepared to accept her reasons for not studying in Indonesia (at [18]).
Although the Tribunal accepted that the applicant’s family resided in Indonesia, it did not accept that her family ties served as a significant incentive for her return in circumstances where she had only returned twice in approximately 8 years of residing in Australia (at [19]).
The Tribunal placed significant weight on the fact that the applicant had been in Australia since 2011, had undertaken a significant number of courses, and that “the course in which she [was] currently enrolled [was] wholly inconsistent with her previous studies” and a “step down” from her previous studies in business related fields. The Tribunal was not satisfied that the course would assist the applicant’s career development or earning potential, considering the qualifications she had already obtained and her work experience as a pastry chef (at [22]). The Tribunal did not consider that there were sufficiently significant incentives for her return to Indonesia at the conclusion of her studies (at [23]).
The Tribunal considered that the “sheer volume” of courses that the applicant had undertaken, together with the length of time she had spent in Australia and what the Tribunal regarded as the “wholly inconsistent” nature of her current course with her previous courses, led it to the view that the applicant was enrolling in a series of courses in order to circumvent the intention of the student migration program and remain in Australia on a more permanent basis (at [25]). This was also influenced by what the Tribunal considered to be the applicant’s “significant ties” to Australia through her employment and volunteering in her local community (at [26]).
The Tribunal considered that the applicant had not “objectively demonstrated” how her pathway changes would be beneficial to her future in a manner that would outweigh the financial commitment to further study. The Tribunal was unwilling to accept the applicant’s claims regarding the value of the course to her future in the absence of further evidence, such as a business plan. The Tribunal considered that, due to the applicant’s significant work history as a pastry chef and previous study, she already possessed the requisite skills to open a bakery in her home country (at [27]-[30]).
The Tribunal considered that the applicant’s immigration history demonstrated an intention to use the student visa program to maintain ongoing residence in Australia. In this regard, the Tribunal considered that the applicant had spent over 8 years in Australia and was undertaking study “wholly inconsistent with previous studies” that did not objectively add value to her future (at [31]-[33]).
The Tribunal accepted that the applicant had no concerns about political or civil unrest, or military service commitments, in Indonesia. However, the Tribunal considered that “an applicant who is a genuine temporary entrant will have circumstances which support an intention to remain in Australia temporarily”. The Tribunal stated that after “considering all the circumstances and all the evidence before the Tribunal”, it did not accept the applicant’s claims to be those of a genuine temporary entrant (at [34]-[37]).
Based upon the above, the Tribunal found that the applicant was unable to meet the criteria for a student visa and affirmed the Delegate’s decision (at [38]-[41]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 17 January 2020 relying upon the following grounds:
1.The Tribunal has erred by failing to take into account relevant documents and information. Specifically, in paragraph 22 of the Tribunal decision the Tribunal staled that the applicant's current's course will not assist in the applicant's future career. Paragraph 29 the Tribunal stated that it cannot see the value of her current course to her future. Paragraph 32 the Tribunal stated that the applicant's current course is inconsistent with the previous studies. It appears the Tribunal totally ignored or failed to take into account relevant evidence in drawing the conclusions in the paragraphs mentioned above. Specifically, the applicant had already given the academic transcripts for the courses in business and accounting as well as her current hospitality course. As clearly apparent from the academic transcripts, the courses in business, accounting and hospitality are complimentary and clearly consistent in equipping someone with skills to engage in a business in the hospitality industry which the applicant had already stated as her future aspirations. Further, it does not appear that the Tribunal took into account that within the current hospitality course, the applicant was given advance standing or exemptions for subjects that she had previous done in the business and accounting course. This means that the current course although different cannot be said to be inconsistent as concluded by the Tribunal. The courses complement each other and are consistent and appropriate for someone trying to gain skills in running a hospitality business.
2.The Tribunal had made an error by not considering evidence in light of the purpose that the applicant had given it for but instead use such it to make a negative inference. The applicant had put on evidence that her motivation in enrolling in the current Hospitality course is the fact that she has had close to 7 years' experience as a pastry chef. In paragraph 16 the Tribunal stated that it had taken into account the applicant's employer's letter and her work experience as a pastry chef, but the Tribunal failed to mention that these evidences we given as evidence of her motivation in undertaking the current hospitality course. Instead, the Tribunal drew an adverse inference in paragraph 21 by stating that the work experience indicates that the applicant wishes to remain in Australia on a permanent basis.
3.The Tribunal drew a conclusion based on an incorrect or erroneous information. In paragraph 26 the Tribunal referred to paragraph 24 and drew a conclusion that (among others) her contribution to the Buddhist community in Sydney is a significant ties indicative of the applicant's intention to remain in Australia on a more permanent basis. However, the applicant did not make any contribution to the Buddhist community in Sydney. The applicant submitted evidence in writing as well as orally that she has made contributions to the Buddhist community in Jakarta and this was another motivating factor that forms an incentive for her to return to Indonesia upon the completion of her current course.
4.The Tribunal failed to take into account relevant information. In paragraph 18 the Tribunal stated that it was unable to accept the applicant's reasons for not studying in Indonesia as sound. It appears the Tribunal neglected to take into account the applicant's evidence that she did not study in Indonesia because she preferred studying in Australia because it is a multicultural country, that she wishes to improve her English by studying in Australia, that Australian education has a great reputation and that having an Australian qualification will add value to her future. The applicant respectfully submits that these are "Sound "reasons.
5.The Tribunal drew a conclusion without adequate basis. In paragraph 25 the Tribunal stated that in its view, the applicant is enrolling in a series of courses with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis. To the date the applicant has undertaken courses in business, accounting and hospitality. The applicant respectfully submits that these courses are consistent and appropriate for someone intending to equip themselves with the skills to engage in their own hospitality business (bakery business) which is on evidence before the Tribunal. Further, on evidence the applicant had stated to the Tribunal that the Department's record appears to be incorrect as it had alleged that the applicant had undertaken a certificate and diploma course in Human Resource which would be inconsistent with her stated future intentions. However, it does not appear that the Tribunal had taken this information into consideration when drawing the conclusion in paragraph 25 as it was not stated anywhere in the Tribunal Decision.
6.The Tribunal made a finding without adequate foundation. In paragraph 27 and paragraph 30, the Tribunal drew the conclusion that the applicant already possesses the skills to open her own hospitality business which on evidence was her expressed career plan. The applicant is perplexed as to the basis of such a finding by the Tribunal. Especially in light of the fact that in paragraph 28 it was noted that the applicant had stated that although she has the technical skill of being a pastry chef, she lacks the skills on how to manage a hospitality business.
7.The Tribunal failed to take into account relevant information. In paragraph 19 the Tribunal concluded that because the applicant only travelled home twice in the last 8 years, it suggests that the applicant's familial ties do not serve as a significant incentive for her to return home. However, the Tribunal appears to have failed to take into consideration that the applicant had put on evidence that she video calls her family every day.
Ground 1
Ground 1 contended that the Tribunal “erred by failing to take into account relevant documents and information”. The applicant observed that she had given transcripts for her business and accounting courses as well as for the hospitality course. The applicant contended that these courses were “complimentary and clearly consistent in equipping someone with skills to engage in a business in the hospitality industry”. The applicant contended that the Tribunal overlooked the advance standing or exemptions that she was given in her hospitality course indicating that the course was not inconsistent with her previous study.
I understand the applicant’s complaint in this regard. The Tribunal did not explain with any particular clarity why it repeatedly found that her hospitality course was “wholly inconsistent with her previous studies” (at [22], [25] and [32]). The applicant’s previous courses were courses in business and accounting. They were at least arguably complementary of her proposed hospitality course, in circumstances where the applicant had expressed a desire to open a business in the hospitality industry.
I have considered whether the Tribunal’s reasoning in this regard may be regarded as illogical. Such a ground has a high threshold. It may be met where the decision reached was simply not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn. However, the fact that a Court may have taken a different view is insufficient: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131]-[135].
Ultimately, and on balance, I am not persuaded that this threshold is met in relation to ground 1. The Tribunal considered the applicant’s contentions regarding why her proposed course was complementary of her other study within the context of her career plans (at [27]-[30]). The Tribunal was not persuaded, on the limited evidence provided, that the applicant had adequately demonstrated the value of the course was as she had contended. The applicant was unable to take the Court to any evidence of exemptions that she had received for prior study, but even assuming such evidence existed, the commonality of some subjects would not necessarily have determined whether or not the overall course was inconsistent with the focus of the applicant’s previous study.
By “inconsistent”, on a fair reading of the Tribunal’s decision, I consider that the Tribunal meant no more than that the overall focus of the course in question was different. Whilst I am troubled by the emphatic language that was used by the Tribunal in this respect, I am not persuaded that it was closed to the Tribunal to have regarded the applicant’s shift from business and accounting courses to a hospitality course as “inconsistent” in this limited manner. On balance, I am not persuaded that the Tribunal’s reasoning, so construed, is capable of meeting the high threshold associated with a ground of illogicality. Nor am I persuaded that the Tribunal overlooked any centrally relevant evidence in coming to this conclusion, notwithstanding that it did not specifically identify in its reasons the individual subjects and potential overlap between some of them in the applicant’s courses.
Therefore, whilst I do not regard the Tribunal’s reasoning in this regard as entirely satisfactory, I do not find that it was affected by jurisdictional error. Ground 1 is consequently unable to succeed.
Ground 2
Ground 2 contended that the Tribunal erred “by not considering evidence in light of the purpose that the applicant had given it for” and instead using it “to make a negative inference”. In particular, the applicant observed that the Tribunal had stated that it had taken into account the applicant’s employment letter and work experience as a pastry chef. However, rather than considering that this evidence supported her motivation to attend a hospitality course, the Tribunal drew an adverse inference regarding this material.
Whilst the applicant referred to [21] of the Tribunal’s decision, the relevant paragraphs appear to be at [22] and [24]-[30]. The Tribunal considered that the applicant’s employment formed part of her ties to Australia and that she had not adequately demonstrated the value of the course to her future, having regard to the knowledge and experience that she had already acquired through her studies and employment.
The difficulty for the applicant under this ground is that the Tribunal was not under any obligation to consider her evidence according to her purposes in giving it. Whilst the Tribunal had regard to the applicant’s evidence of her employment, the Tribunal was not obliged to consider that this adequately supported her claimed career goals.
As the Tribunal was under no obligation to consider the applicant’s evidence in the manner that she had intended, ground 2 is unable to succeed.
Ground 3
Ground 3 contended that the Tribunal misunderstood the applicant’s evidence regarding her involvement with the Buddhist community. The Tribunal considered at [24] that the applicant’s evidence at hearing was that she “has consistently maintained ongoing employment while being onshore and spenders [sic] her spare time volunteering in her Buddhist community in Sydney”.
Neither party placed a transcript of the Tribunal hearing into evidence. However, the Minister conceded that this reasoning on the part of the Tribunal involved error. The Minister accepted that the Tribunal had misunderstood the applicant’s evidence about her involvement with the Buddhist community, which she had contended had been with the Buddhist community in Indonesia and not in Australia.
The question then becomes the significance of the erroneous reasoning within the context of the Tribunal’s decision. In this regard, the Minister submitted that jurisdictional error would be found if the Court considered that the error was material in the sense considered in cases such as Nathanson v Minister for Home Affairs [2022] HCA 26 at [1] per Kiefel CJ, Keane and Gleeson JJ i.e. as an error that “deprived the [applicant] of a realistic possibility of a different outcome”. However, as I raised at the hearing, there are cases that suggest that the impugned reasoning must be “critical” to the ultimate decision, at least to the extent that it may be contended to have been illogical or irrational: see for example Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464 (Plaintiff S183) at [43]-[52] per Gordon J, BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [34] per Perram, Perry and O'Callaghan JJ and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [55]-[56] per Wigney J. Regardless, for the reasons given below, any difference in this regard does not affect the outcome in this matter.
The Minister contended that this error on the part of the Tribunal was immaterial. The Minister contended that the impugned reasoning was only one minor part of the Tribunal’s broader findings as to why it did not consider that the applicant genuinely intended to stay in Australia temporarily. The Minister submitted that the Tribunal also found that:
(a)the applicant’s family ties to Indonesia were not a significant incentive for her to return given she had only returned to Indonesia twice in approximately 8 years ([19]);
(b)the applicant did not have an economic incentive to return to Indonesia ([20]);
(c)the applicant’s current course of study was inconsistent with her earlier studies and the value of it had not been adequately demonstrated to the applicant’s stated career goal of operating a bakery in Indonesia ([24], [25], [27]); and
(d)the applicant’s immigration and study history demonstrated an intention to use the student migration program to maintain ongoing residence in Australia ([33]).
The Minister submitted that when the Tribunal’s erroneous finding was viewed in that context, there was no realistic possibility that its decision could have been different if the error had not been made.
The Tribunal’s error gave rise to two issues. Firstly, it meant that the Tribunal did not take into account the applicant’s evidence that she had community ties in Indonesia that she claimed to have had as a potential incentive for her to return there. Secondly, it meant that the Tribunal erroneously weighed against the applicant the presence of ties in Australia that did not exist as an incentive for her not to return to Indonesia.
The Tribunal was obliged, under Direction No. 69, to have regard to the extent of the applicant’s personal ties to her home country as well as to any ties with Australia that would present a strong incentive to remain. This, for the purposes of the direction, expressly included any community ties. The applicant’s community ties, and where they were located, was therefore of express and central relevance to the weighing task that the Tribunal was required to undertake. In not assessing the applicant’s claimed community ties in her home country, the Tribunal did not undertake the exercise required under Direction No. 69. Had it done so, then it is possible that the additional weight given to the applicant’s Indonesian ties may have influenced its ultimate conclusion as to whether or not the applicant was a genuine temporary entrant. Whilst it may not have, this weighing process was one that was required to be undertaken by the Tribunal. I am not persuaded that the Tribunal’s failure to undertake this process in relation to the applicant’s claimed community ties was immaterial.
The use to which the Tribunal put its erroneous factual finding regarding the applicant’s ties in Australia indicates that it was of some significance to the Tribunal’s ultimate decision. At [26], the Tribunal reasoned:
26. Based on the above, the Tribunal finds that the applicant has significant ties to the Australian community, demonstrated by her employment and volunteering in her local community, that would serve as an incentive not to return to Indonesia. This leads to the conclusion that the applicant's desire to study in Australia is secondary to her intention to remain in Australia on a more permanent basis.
The Minister accepted that the reference to “community” ties was a reference to the Tribunal’s erroneous factual finding in relation to the applicant’s involvement with the Buddhist community. The Tribunal, therefore, appears to have considered the applicant’s ties in the form of this involvement to have been “significant”. It was one of two categories of ties with Australia leading to its conclusion, at [26], that the applicant’s desire to study was secondary to her intention to remain in Australia on a more permanent basis.
I accept that this was not the only feature of the Tribunal’s decision that led to the Tribunal’s ultimate conclusion at [37] that the applicant was not a genuine temporary entrant. It did not need to be, in order to be considered critical: see Plaintiff S183 at [46].
At [36], the Tribunal considered that “an applicant who is a genuine temporary entrant will have circumstances which support an intention to remain in Australia temporarily”. The Tribunal’s consideration that the applicant had not sufficiently demonstrated such circumstances was informed by its erroneous understanding that the applicant had not demonstrated community ties in Indonesia in respect of which she had provided evidence. It was also informed by the Tribunal’s understanding that the applicant had demonstrated greater ties to the Australian community than were supportable on the evidence that was before the Tribunal.
At [37], the Tribunal stated that its finding that the applicant was not a genuine temporary entrant had been made “considering all the circumstances and evidence before it”, on the basis of its earlier reasoning. That reasoning had expressly relied upon the Tribunal’s assessment of the applicant’s ties with Australia. This relied upon the Tribunal’s erroneous factual finding.
Having regard to the above and to the Tribunal’s reasoning as a whole, I find that the Tribunal’s erroneous reasoning was sufficiently critical to its decision as to have infected its overall reasoning. It follows that the impugned reasoning could not be said to have been immaterial.
The applicant therefore succeeds on ground 3.
Ground 4
Ground 4 contended that the Tribunal failed to take into account the applicant’s evidence that she preferred studying in Australia “because it is a multicultural country, that she wishes to improve her English by studying in Australia, that Australian education has a great reputation and that having an Australian qualification will add value to her future.” These were submitted to be sound reasons.
At [17], the Tribunal considered the applicant’s evidence that she had studied in Australia rather than Indonesia due to the “excellent educational systems” and the course being of shorter duration in Australia. I accept that the Tribunal did not expressly refer to the applicant’s evidence about wanting to improve her English skills, or regarding multiculturalism. However, the Tribunal was not obliged to refer to every aspect of the evidence that was before it. I am not persuaded that this evidence was so objectively central or significant in nature as to justify an inference being drawn that it was overlooked.
The Tribunal was unwilling to accept the applicant’s reasons for not studying in Indonesia as sound, in circumstances where she had not objectively demonstrated any significant research into the availability of courses in her home country (at [18]). Whilst the applicant may disagree with this reasoning, such disagreement does not provide a basis for overturning the Tribunal’s decision. It has not been demonstrated that this reasoning was relevantly closed to the Tribunal. Non-acceptance of a claim in the absence of adequate supporting evidence is a fairly orthodox reasoning process for the Tribunal to have undertaken.
For these reasons, ground 4 is unable to succeed.
Ground 5
Ground 5 contended that the Tribunal’s conclusion at [25], that the applicant was enrolling in courses in order to circumvent the intention of the migration program and remain in Australia on a more permanent basis, was made without adequate basis. The applicant maintained that her courses were consistent and appropriate to her career goals. She also submitted that the Delegate’s decision incorrectly referred to her undertaking courses in Human Resources.
For the reasons given under grounds 1 and 2, I am not persuaded that it was relevantly closed to the Tribunal to have regarded the applicant’s shift in the focus of her courses as inconsistent. The Tribunal was not required to accept that the value of the applicant’s courses to her career goals was as claimed. The Tribunal’s reasoning in this regard, together with the balance of its reasoning regarding the applicant’s circumstances and immigration history (subject to the error considered under ground 3), was logically capable of supporting the Tribunal’s conclusions that the applicant was not a genuine temporary entrant and was instead using the student visa program to support more permanent residency intentions.
Although the Delegate referred to the applicant undertaking courses in Human Resources, there is nothing in the Tribunal’s decision indicating that the Tribunal considered that she had undertaken such courses. The Tribunal did not list this course in its summary of the applicant’s previous studies (at [13]). I therefore do not accept that any error in this respect can be shown in the Tribunal’s decision, even assuming that the Delegate’s decision was incorrect in this regard.
For the above reasons, ground 5 is unable to succeed.
Ground 6
Ground 6 contended that the Tribunal’s findings at [27] and [30], that the applicant already possessed the skills to open her own hospitality business, were made without adequate foundation. The applicant observed that she gave evidence that, although she had the technical skill of being a pastry chef, she lacked the skills on how to manage a hospitality business.
The difficulty for the applicant is that the Tribunal was not obliged to accept this evidence. It is apparent that it did not, in circumstances where the applicant had undertaken a number of business courses and gained some employment experience. These were matters that were logically capable of informing whether or not the applicant possessed sufficient skills to open her own bakery.
In coming to its conclusions, the Tribunal expressly considered the applicant’s claim that her skills were insufficient (at [28]). However, the Tribunal was not willing to accept the applicant’s evidence about the claimed value of the course to her future on account of limitations in the evidence (at [29]-[30]). Such reasoning was comprehensible. I am unable to conclude that it was relevantly closed to the Tribunal.
Having regard to the above, ground 6 is unable to succeed.
Ground 7
Ground 7 contended that the Tribunal failed to take into account the applicant’s evidence that she video calls her family every day, in considering whether her family ties served as a significant incentive for her to return to Indonesia.
I am not persuaded that an inference ought to be drawn that this evidence was overlooked. The Tribunal was not obliged to refer to every aspect of the evidence that was before it. The Tribunal acknowledged that the applicant’s family resided in Indonesia. It did not doubt, in its decision, that she was in contact with them. However, the Tribunal did not consider that this served as a significant incentive for her return there, in circumstances where she had only done so twice in approximately 8 years (at [19]). The applicant’s ability to maintain contact with her family remotely did not necessarily tend against this conclusion. Given this, I am not persuaded that an inference ought to be drawn that this aspect of the evidence was overlooked, as distinct from having been regarded as incapable of materially bearing upon the Tribunal’s decision.
Having regard to the above, I am not persuaded that this aspect of the evidence was of such a cogent, central or substantial nature that an inference ought to be drawn that it was overlooked, or that this resulted in jurisdictional error: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112] per Robertson J.
Ground 7 is therefore unable to succeed.
CONCLUSION
As the applicant has succeeded under ground 3, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 14 September 2023
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