Mahato v Minister for Immigration
[2020] FCCA 1116
•28 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAHATO v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1116 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – numerous jurisdictional errors alleged – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.357A, 360, 366A, 499, 500 Migration Regulations 1994 (Cth) |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Craig v State of South Australia (1995) 184 CLR 163 DAO16 v Minister for Immigration (2018) 258 FCR 175 Kumar v Minister for Immigration [2020] FCAFC 16 Minister for Immigration v FOE17 [2020] FCAFC 73 Minister for Immigration v Lay Lat (2006) 151 FCR 214 Minister for Immigration v SZIAI (2009) 259 ALR 429 Minister for Immigration v SZMDS & Anor (2010) 240 CLR 611 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Prasad v Minister for Immigration (1985) 6 FCR 155 Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437 SZBEL v Minister for Immigration (2006) 228 CLR 152 |
| Applicant: | SMRITI MAHATO |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1839 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr H Bhatta of Residency Legal |
| Solicitors for the Respondents: | Ms A Zinn of Mills Oakley |
ORDERS
The application as amended on 16 January 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1839 of 2018
| SMRITI MAHATO |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Ms Mahato, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 June 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Mahato a temporary student visa.
The following statement of background facts is derived from the submissions of the parties.
Ms Mahato is a citizen of Nepal who arrived in Australia on 17 May 2009 as the holder of a student visa. She was subsequently granted a further student (subclass 572) visa and a graduate (subclass 485) visa.[1] Since arriving in Australia, Ms Mahato has completed courses in business, management, accounting and translating.
[1] Court Book (CB) 35
On 18 July 2016, Ms Mahato applied for a student (subclass 500) visa on the basis of her enrolment in a Certificate IV and Diploma in Information Technology Networking.[2]
[2] CB 1-23
On 27 September 2016, the delegate refused to grant Ms Mahato a student visa.[3] The delegate was not satisfied that Ms Mahato was a genuine applicant for entry and stay as a student as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate retained “serious concerns” about Ms Mahato’s true intentions in Australia and found she appeared to be using the student visa programme to maintain ongoing residence in Australia.[4]
[3] CB 29-38
[4] CB 35
The Tribunal
On 10 October 2016, Ms Mahato applied to the Tribunal for review of the delegate’s decision.[5] She provided a copy of the delegate’s decision with her review application and also appointed a migration agent as her representative.[6]
[5] CB 39-40
[6] CB 40
On 8 November 2017, Ms Mahato was invited to attend a hearing scheduled for 7 December 2017.[7] The hearing invitation requested: copies of Ms Mahato’s current Certificate of Enrolment (COE); documents that show Ms Mahato’s past studies in Australia; and a written statement addressing whether she was a genuine applicant for entry and stay as a student.[8] No such documents were provided by Ms Mahato in advance of the hearing.
[7] CB 50-63
[8] CB 53
On 7 December 2017, Ms Mahato attended the Tribunal hearing with a newly appointed representative.[9] At the hearing, Ms Mahato submitted various education documents.[10] She gave evidence that she was now pursuing studies in Human Resources.[11]
[9] CB 68-69; CB 81-83
[10] CB 84-86
[11] CB 91
The Tribunal’s decision
On 5 June 2018, the Tribunal affirmed the decision not to grant Ms Mahato a student visa.[12]
[12] CB 87-97
The Tribunal identified that the issue arising in relation to the decision under review was whether Ms Mahato was a genuine temporary entrant for study and satisfied clause 500.212.[13] The Tribunal set out the relevant law and correctly observed that it was required to have regard to Direction No. 69 (the Direction), made under s.499 of the Migration Act 1958 (Cth) (Migration Act), and assess Ms Mahato against the list of “specific factors” in the Direction.[14] The Tribunal also observed that the list of specified factors should not be used as a checklist but were intended to guide decision makers to weigh up an applicant’s circumstances as a whole.[15]
[13] CB 92, [14]-[15]
[14] CB 93, [16]
[15] CB 93, [17]; see: Item 1, Part 2 of Direction No. 69; Ghimire v Minister for Immigration [2014] FCA 899 at [3]
The Tribunal considered Ms Mahato’s evidence individually and cumulatively but was not satisfied she intended to leave Australia after she completed her current course. The Tribunal found Ms Mahato did not have a clear plan for her career in Nepal, had no work experience there and had not demonstrated the value of a Diploma in Human Resource Management when she intended to work as an accountant. The Tribunal found Ms Mahato’s evidence that she thought Human Resources would be useful in Nepal was vague and that she did not appear to have done any research about the feasibility of using her Human Resources qualifications, along with accounting, in the future. The Tribunal found it was unlikely an employer would engage Ms Mahato to work across accounts and Human Resources when she did not have any work experience in those areas.[16]
[16] CB 93, [21]
The Tribunal found Ms Mahato had incentives to remain in Australia including: her husband living in Australia with her; her past difficult relationship with her parents due to marrying without their approval; the amount of time since she returned to Nepal; and her ongoing employment. The Tribunal found there was no evidence to support the claim that Ms Mahato would inherit assets from her parents and no explanation as to how this would be an incentive to return to Nepal.[17]
[17] CB 94, [22]
The Tribunal found Ms Mahato’s reason for enrolling in an IT course, namely because her agent told her it would result in a longer student visa, was not a legitimate reason to enrol in a course of study. The Tribunal found Ms Mahato was willing to continue studying in order to remain in Australia.[18]
[18] CB 94, [23]
The Tribunal was not satisfied Ms Mahato was a genuine applicant for entry and stay as a student as required by clause 500.212[19] and affirmed the decision under review.[20]
[19] CB 94, [25]
[20] CB 94, [26]-[27]
The current proceedings
These proceedings began with a show cause application filed on 3 July 2018. Ms Mahato now relies upon an amended application filed on 16 January 2020. There are eight particularised grounds in that application:
1. The Second Respondent made jurisdictional error by taking into account irrelevant considerations and materials.
Particulars
a)The Second Respondent at [9], [11] and [20] took into account the Applicant's employment in the fast food industry to disregard her intention to return to Nepal after completion of her studies despite justifications from herself and her agent about her employability in Nepal;
b)The Second Respondent at [19] took into account the Applicant's failure to travel to Nepal and the Applicant's concerns about her family's initial acceptance of her marriage despite the Applicant saying her family now accepted her marriage;
d) The Second Respondent at [21] makes a finding that it is unlikely that a Nepalese employer would not engage the applicant to work across accounts and human resources without work experience, despite justifications from herself and her agent to the contrary.
e) The Second Respondent [23] considered the applicant had completed Advance Diploma of Translating without apparent purpose other than adding to a range of qualification and assumes that the applicant continued studying in order to remain in Australia despite the course being completed and having undertaken while the applicant’s review application was on process so that she does not waste her time.
2. The Second Respondent made jurisdictional error by making inconsistent/self-contradictory findings.
Particulars
(a)The Second Respondent [19] raised a finding that the Applicant has concerns about her family because she would live with her husband's family upon returning to Nepal despite the Applicant's declaration that her parents now accepted her marriage.
(b)The SR accepted in one hand that the applicant could live with her husband's family [19] and in the other finds she will not return for fear from her own family [23].
(c)The Second Respondent is agreeing that the applicant has completed the course but does not regard the course completion as to any importance in the applicant's career or future [23].
(d)The Second Respondent [22] suggest there is no explanation as to how an assets inherited from her parent would be an incentive to return to Nepal while the Second Respondent (T, p7 at 28) is asking the same question to determine the applicant's genuineness.
3. The Second Respondent made jurisdictional error by failing to take into account relevant considerations and ignoring relevant material.
Particulars
(a) The Second Respondent at [12] failed to consider the Applicant’s qualifications would be beneficial to her career path in Nepal;
(c) The Second Respondent failed to consider applicant’s course completion;
(d) The Second Respondent failed to consider the applicant genuine reasons for not travelling.
(e) The applicant informed the tribunal that [her] agent has provided [her] wrong advise [8]. Educational counsellors are person who advise applicant as to the course and career plans. The Second Respondent ignored it all together and assumed that the difference in the course is a choice of the applicant.
(f) The Second Respondent [21] suggest that the applicant did not appear to have done any research about the feasibility of utilising her human resource qualification along with accounting in the future despite the applicant clearly identifying the benefit or use of both together (T. p9 at 20).
4. The Second Respondent has made jurisdictional error by denying the Applicant procedural fairness.
Particulars
(a)The Second Respondent made a finding at [21] a Nepalese employer is unlikely to engage the applicant to work across accounts and human resources when she does not have work experience, without giving any reasonable and valid justifications and without raising the issue to the applicant during the hearing based on the tribunal's assumption;
(b)The Second Respondent made a finding at [21] that the applicant does not appear to have a clear plan for her career in Nepal, without giving her an opportunity to comment on that.
(c)The Second Respondent at [21] made a finding that the Applicant did not want to return to Nepal because her parent's did not approve her marriage, without giving her an opportunity to comment on that. The issue was not raised as a reason for not going to Nepal at all to the applicant.
5. The Second Respondent made jurisdictional error by making an erroneous finding and reaching a mistaken conclusion and misconstruction of the GTE requirement.
Particulars
(a)The Second Respondent said that living with husband's family after going back to Nepal suggests that the applicant has concerns about the views of her own family [19]. The Second Respondent seems to ignore or is unaware of the cultural aspect whereby in Nepal most women live with their husband after marriage. The Second Respondent raise it as a concern whilst it is more culture and tradition, and the Second Respondent did not check the same with the applicant during the hearing or investigated thereafter. The Second Respondent has done no research at their own to point to a different conclusion. The Second Respondent misunderstood it and made the erroneous finding.
(b)The tribunal has done no research at their own to point to a different conclusion [21] as to the course as well as employment aspect of the applicant.
(c)The Second Respondent made an error [23] in suggesting that the applicant completed Advance Diploma of Translating without apparent purpose other than adding to a range of qualification and that the applicant is willing to continue studying in order to remain in Australia. This is despite the fact that the course has being undertaken and completed while the applicant was waiting for the decision on review application to not waste her time.
(d)The Second Respondent (T, p7 at 28) is asking the question as to assets to determine the applicant's genuineness and having assets in the home country is part of the genuine temporary entrant criterion under Direction No 69 in assessing the circumstance in home country. The Second Respondent [22] came to a wrong conclusion in suggesting how assets inherited from her parent would be an incentive to return to Nepal.
6. The Second Respondent made jurisdictional error by identifying wrong issue and asking the wrong question.
Particulars
(a)The Second Respondent raised concern about the applicant's husband. By raising the issue and question as to the applicant's husband who is on a student visa (T P5 at 21), the Second Respondent fell into jurisdictional error.
(b)The Second Respondent asked wrong questions:
(i) Despite the fact that an incentive is something that the Second Respondent should infer or determine; the Second Respondent has asked the applicant about incentive to return [T, p6 at 40 and T, p7 at 1];
(ii) The Second Respondent is asking about husband willingness to return [T, p7 at 10] and his studies [T, p7 at 14];
(iii) Whether the applicant’s studies being Bachelor before coming to Australia [T, p7 at 35].
(c) The Second Respondent has asked wrong question and identified wrong issue which led to jurisdictional error.
7. The Second Respondent made jurisdictional error by constructive failure to exercise jurisdiction and by being unreasonable.
Particulars
(a)The Second Respondent was conducting a merit review of an application based on Migration Act and Regulation. The Second Respondent seems to be unaware of the 'Professional Year' (T, p4 at 4 and 18). The decision-maker in the position of the Second Respondent should be aware of the basis process as to the migration regulation and system. Being unaware of the common thing, the Second Respondent was unable to discharge it's duty and hence fell into jurisdictional error.
(b)The Second Respondent in conducting the review is required to have regard to 'value of the course' to the applicant's future. The Second Respondent did not enquire or asked about the value of the course as required under the Direction No 69. The Registered Migration Agent for the applicant has to raise the same with the Second Respondent and to initiate the Second Respondent to ask for the value of the course to the applicant [T. p8 at 45 and T. p9 at 9]. The value of the course is one of the components of the Direction 69 which a tribunal must consider for the GTE requirement. The Second Respondent in its opening statement suggests that the value of the course is a component yet does not consider it subsequently until raised by the agent. The Second Respondent have not given any significant weight to the same including in the decision record.
(c) The Second Respondent is suggesting the Registered Migration Agent that being acting as the applicant's agent 'the agent can provide information or evidence that he want to provide' [T, p9 at 7 and T, p9 at 12] despite it be a process or procedure that the agent cannot provide evidence or giving witness as to the applicant and the Second Respondent must get infom1ation from the applicant or a witness who gives statement under oath.
8. The Second Respondent made jurisdictional error by being unreasonable and by constructive failure to exercise jurisdiction.
Particulars
(a)The Second Respondent making decision based on hypothetical assumption and conclusion instead of facts or evidence.
(b)The Second Respondent has done no research at their own to point to a different conclusion or put to the applicant giving her an opportunity to comment.
(c)The Second Respondent has disregarded as to applicant's home country's law, procedure, culture and tradition as to the living but just assumed the applicant is feeling unsafe and will be unsafe.
(d)The Second Respondent concludes the applicant is unsafe or feel unsafe for family's opposition to marriage despite repetitive suggestion by the applicant otherwise.
(e)The Second Respondent made assumption as to applicant employment opportunity due to studies or experience.
(f)The Second Respondent presumed that the relationship between applicant and her family were still not good and in fact it is so bad that the applicant feared for her life or wellbeing despite otherwise presenting by the applicant.
(g)The Second Respondent made assumption about applicant returning and relationship with her family.
(errors in original)
I received as evidence the affidavit of Steven Stefanic made on 20 February 2020, to which is annexed a transcript of the Tribunal hearing conducted on 7 December 2017.[21] Curiously, the Tribunal at [5] of its reasons also incorrectly gives the date of the hearing as 8 December 2018, however nothing turns on those errors.
[21] The transcript incorrectly states that the hearing took place on 7 December 2019
I also have before me as evidence the court book filed on 13 September 2018.
Both Ms Mahato and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 8 May 2020.
In his oral submissions, Ms Mahato’s representative provided a detailed critique of the Minister’s written submissions and also made oral submissions in chief about four matters in particular. The first of these was the proposition that the Tribunal erred by not considering, or not considering properly, the value of the course being undertaken by Ms Mahato at the time of the Tribunal decision. The Minister accepts that the value of the course being undertaken is one consideration to which the Tribunal was required to give attention but submits that the Tribunal did give adequate attention to that factor.
I agree. First, the courses undertaken by Ms Mahato were recorded by the Tribunal at [8] of its reasons[22] and were further discussed at [18].[23] At [21] the Tribunal stated:[24]
The Tribunal has considered the evidence individually and cumulatively and is not satisfied the applicant intends to leave Australia after she completes her current course. The applicant does not appear to have a clear plan for her career in Nepal; she has no work experience there and has not demonstrated sufficiently the value of a Diploma in Human Resource Management when she intends to work as an Accountant. The applicant said Human Resources is not an established field in Nepal but she expects it will be useful to her. The Tribunal does not find this claim to be realistic and the applicant's evidence in this regard was vague. She did not appear to have done any research about the feasibility of utilising her HR qualifications, along with Accounting in the future. The Tribunal finds it unlikely an employer would engage the applicant to work across accounts and human resources when she does not have work experience in those areas.
[22] CB 91
[23] CB 93
[24] CB 93-94
While there was, in my view, a degree of speculation on the part of the Tribunal about Ms Mahato’s employability in human resources, in substance, the Tribunal was not satisfied that a Human Resources qualification would enhance her career. Part of the problem was the dearth of information provided by Ms Mahato. When Ms Mahato was invited to attend the hearing[25] she was asked to provide documentation concerning her studies and employment. She was not forthcoming in that regard.
[25] CB 52-54
Ms Mahato’s representative (who also represented her before the Tribunal) secondly took issue with the invitation given to him by the Tribunal at the end of the hearing. The relevant exchange is recorded in the transcript at page 9 from line 4 through to line 46 on page 10:
MIGRATION AGENT: Sure. Okay. There were a few other things I have been informed so I just wanted - - -
MEMBER: Okay. You can tell me if you want.
MIGRATION AGENT: Sure. And will you want to ask about value of the course or you have done that? I don't want to be witnessing - - -
MEMBER: I mean, you're acting as her agent so you can - if there's information you want me to be aware of then you can tell me but Mrs Mahato, did you want to say anything else about the value of the course hat you're doing to your future?
MS MAHATO: Yes, like I'm doing Human Resource Management at the moment and first of all it will help me to get extra skill. Second, it will help me to get the good (indistinct) and good salary in my country and the third, it will be like I have already got like Bachelor of - Bachelor of Accounting degree but it will help me to manage people in the same (indistinct) they don't have to call for another people.
MEMBER: Yes. I'm pretty sure you'd already answered that question.
MS MAHATO: Yes.
MIGRATION AGENT: (Indistinct). Thank you, Member. Now, most important reason - one of the most important reasons the Department has concerns as to my client was she hasn't been back to Nepal from 2012 and that there is no significant (indistinct) as such. Now, my client has already mentioned that she was in love with one of the guy who was in a different inter-caste relationship. Now, if I can explain to the Member that inter-caste relations are taken quite differently in Nepal than Australia and there is a lot of forced marriage kind of thing if you're not married.
That was one of the primary reasons she had mentioned that she was not able to go because she fear that they might, you know - the parents are good but the community as a whole wouldn't let her - or the caste itself wouldn't let her marry to someone in other caste and she hear that and she was not able to go before. Now, during that time she were not able to marry and she - you know, and that's one of the reasons she was not able to go. Now, she is married and nobody can do anything because she's already married and she can stay even in her husband's home.
The other concern at the same time is there is no substantial ties to Nepal as in there's no asset or anything like that. Now, I'm not hundred per cent who are the members – are the member of her families are as to sibling but my understanding is normally the asset the parent have is inherited by the child and fortunately she is the only - second child of two of the child. So she will have all the asset (indistinct). So the system is slightly different compared to Australia because it's a right to inherit kind of thing where there's no will but the property will come to the children mostly. So, you know, she does not have asset in her own name but all the asset that belongs to her parent is her own as well.
Now, the third thing that was a concern was the value of the course. Now, I cannot say that the previous (indistinct) she had previously but as to her Bachelor along with her Human Resource degree would be quite helpful for her in her career, that way she will definitely have a good job because (indistinct) or Bachelor degree (indistinct) by people skills will be helpful in many of the good jobs including big banks and it will help her progress in her (indistinct) employment as well as income. Now, if she doesn't complete the (indistinct) Human Resource itself only she will lack one of the big asset that is the managing the people which I can see she has about 10 months to finish.
I'm just guessing here but she has about 10 months to finish but if she does complete that course she will have substantially improved her (indistinct) skills so much that it will enhance her ability to earn much higher in a big firm or banks as well as further employment and promotions as well. So that was the third consideration, if I may put to the Member, that my client should be satisfying the genuine criteria and as she has already promised she has just about 10 months left in her course and she would be going back to the country to further her career as well as look after the parent once she finis this course. I submit that to the Member. Thank you.
MEMBER: Okay. Ms Mahato, was there anything else that you wanted to -
MS MAHATO: Thank you.
MEMBER: Okay. All right. Okay. So as I said in my introduction I'll consider all the evidence that you provided today at the hearing and I'll also take into account the information from the Department and that you've submitted prior to the hearing. If I need anything from you before I make a decision I'll contact you through your representative, otherwise, I'll make a decision, should be within a few weeks and you'll receive the decision and the reasons for the decision and the Immigration Department is advised about the outcome at the same time. So I haven't made any determination at the moment but whatever the decision is in the case then your representative can advise you about the next steps.
MS MAHATO: Thank you.
The representative submitted that the Tribunal was inviting him to give evidence on his client’s behalf which would have been inappropriate. I do not accept that the Tribunal invited the representative to engage inappropriately in the review. The Tribunal was in fact responding to the representative’s request to be permitted to state “a few other things” and was at pains to give him that opportunity. No procedural or other error resulted.
The third matter addressed in detail by Ms Mahato’s representative was the question of whether she was for any reason afraid to return to Nepal. In this regard Ms Mahato seeks to impugn [22] of the Tribunal’s reasons where the Tribunal stated:[26]
The Tribunal considers the applicant has reasons to remain in Australia. These reasons include the applicant's husband being in the country with her, her past difficult relationship with her parents due to marrying without their approval, the amount of time since she has returned to Nepal and her ongoing employment. Although it was claimed the applicant will inherit assets from her parents, there is no evidence to support this and no explanation as to how this would be an incentive to return to Nepal. According to the evidence, the applicant has not wanted to return to her own country since committing to a relationship her parents did not approve of and the Tribunal considers this to be an incentive to remain in Australia.
[26] CB 94
Ms Mahato complains that the Tribunal was in effect converting a past admitted problem to a future problem which was specifically addressed in her evidence to the Tribunal.
In my view, the Tribunal is at [22] doing little more than recognising that Ms Mahato had married in Australia and would prefer to be where her husband is. While her difficulties with her family concerning the marriage were said to be resolved it was certainly open for the Tribunal to conclude that Ms Mahato would wish to remain in Australia for at least as long as her husband resides here.
Ms Mahato’s representative also contended orally that the Tribunal fell into error in querying her employability in Nepal. This issue overlaps with Ms Mahato’s complaint concerning the assessment of her human resources course of study. Once again, Ms Mahato seeks to impugn [22] of the Tribunal’s reasons, which I have already dealt with above. I see no error in the Tribunal’s approach.
I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.
Ground 1
Ground 1 contends that the Tribunal took into account irrelevant considerations and materials. The particulars contain five paragraphs which variously refer to findings of the Tribunal, but the purported jurisdictional error is not clearly articulated.
Although the Tribunal may commit a jurisdictional error if it relies on irrelevant material,[27] no such error arises in this case. The Direction relevantly required the Tribunal to have regard to Ms Mahato’s circumstances in her home country, potential circumstances in Australia and the value of the course to her future as well as her immigration history. There was no obligation on the Tribunal to “formulaically address” or “laboriously set out” each and every matter in the Direction,[28] but rather give weight to those matters it considered to be relevant to Ms Mahato’s circumstances or sufficiently material to her,[29] which is precisely what it did.
[27] Craig v State of South Australia (1995) 184 CLR 163
[28] Kumar v Minister for Immigration [2020] FCAFC 16 at [106]
[29] Ibid at [86]
After considering all the evidence and submissions placed before it by Ms Mahato and her migration agent, the Tribunal was not satisfied Ms Mahato intended to leave Australia after completing her current course. Contrary to the complaints in Ground 1, in determining whether Ms Mahato satisfied clause 500.212 it was open to the Tribunal to consider her employment in the fast food industry,[30] the fact that she had not travelled to Nepal since arriving in Australia[31] and her sister’s residence in Australia.[32] Indeed, it was required by the Direction to turn its mind to these considerations.
[30] CB 93, [20]
[31] CB 93, [19]
[32] CB 93, [20]
Particular (d) refers to the Tribunal’s finding[33] that it was unlikely an employer would engage Ms Mahato to work across accounts and Human Resources when she did not have work experience in those areas. This finding was open and could not be said as being one that no rational or logical decision maker could have arrived at on the same evidence.[34] It should also be read in the context of the Tribunal’s decision as a whole. The Tribunal found that:
a)Ms Mahato did not have a clear plan for her career in Nepal;
b)Ms Mahato had no work experience there;
c)Ms Mahato had not demonstrated the value of a Human Resources diploma when she intended to work as an accountant; and
d)Ms Mahato’s claim that the diploma would be useful to her in Nepal was unrealistic and that her evidence in this regard was vague.
[33] CB 93, [21]
[34] Minister for Immigration v SZMDS & Anor (2010) 240 CLR 611 at [130]
Further, the Tribunal found Ms Mahato did not appear to have done any research about the feasibility of her utilising her Human Resources qualifications together with accounting in the future.[35] The Tribunal’s finding that it was unlikely an employer would employ Ms Mahato without work experience flowed logically from the preceding observations and findings.
[35] CB 93, [21]
Particular (e) takes issue with the Tribunal’s finding[36] that Ms Mahato had completed a Diploma of Translating without apparent purpose and contends that the course was completed “while the applicant’s review application was in process so that she does not waste her time”. This is contradictory to Ms Mahato’s evidence at the Tribunal hearing that she undertook this qualification because it would “help her to get a job in Nepal”.[37] Were Ms Mahato now to seek to raise a contention that was not made before the Tribunal, this would amount to an impermissible attempt to seek merits review.[38]
[36] CB 94, [23]
[37] CB 91, [8]; Transcript, page 4 at line 33
[38] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
Ground 2
Ground 2 contends that the Tribunal made “inconsistent/self-contradictory findings”.
Particulars (a) and (b) state that the Tribunal accepted[39] that Ms Mahato could live with her husband’s family but found she would not return for fear from her own family.[40] It is not apparent how these findings are contradictory. The Tribunal noted Ms Mahato’s evidence that her parents had now accepted her relationship but she also claimed that when she returned to Nepal she would be able to live with her husband’s family. The Tribunal found this suggested she still had concerns about the views of her own family.[41] The Tribunal had regard to Ms Mahato’s past difficult relationship with her parents and found this, amongst other factors, was an incentive to remain in Australia.[42] These findings were open and Ms Mahato’s complaints go no further than expressing disagreement with the Tribunal’s factual findings, which does not amount to jurisdictional error. It is well established that even emphatic disagreement with the Tribunal’s reasoning is not sufficient to make out illogicality.[43]
[39] CB 93, [19]
[40] CB 94, [22]
[41] CB 93, [19]
[42] CB 94, [22]
[43] DAO16 v Minister for Immigration (2018) 258 FCR 175 at [30]
Particular (c) misconceives the Tribunal’s actual findings. The Tribunal did not find that the completion of the Diploma of Translating had no importance in Ms Mahato’s career. Instead it expressed concern that the course was completed with no apparent purpose other than to add to a range of qualifications which indicated Ms Mahato was willing to continue studying to remain in Australia.[44]
[44] CB 94, [24]
Particular (d) is also misconceived. The Tribunal[45] had regard to Ms Mahato’s evidence that she would inherit assets from her parents but found there was no evidence to support this and no explanation as to how this would be an incentive to return to Nepal. At the hearing, the Tribunal asked Ms Mahato whether she had any assets or other ties to Nepal[46] and she responded, “I think the one that my parents have, that’s the one we have so not really”. The Tribunal’s reasoning was open in circumstances where it was for Ms Mahato to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction,[47] and the Tribunal was not required to make Ms Mahato’s case for her.[48]
[45] CB 94, [22]
[46] Transcript, page 7 at line 27
[47] Minister for Immigration v Lay Lat (2006) 151 FCR 214 at [76]
[48] Abebe v Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration (1985) 6 FCR 155 at 155
Ground 3
Ground 3 contends that the Tribunal failed to take into account relevant considerations and ignored relevant material including:
a)that Ms Mahato’s qualification would be beneficial to her career path in Nepal;
b)Ms Mahato’s course completion;
c)Ms Mahato’s genuine reasons for not travelling;
d)incorrect advice received from Ms Mahato’s agent; and
e)Ms Mahato “clearly identifying the benefit or use” of her Human Resources and accounting qualifications.
The Tribunal plainly considered Ms Mahato’s evidence regarding the benefit of her qualifications[49] but found she did not have a clear plan for her career in Nepal.[50] The Tribunal also had regard to:
a)the courses Ms Mahato completed;[51]
b)her claimed reasons for not having returned to Nepal;[52] and
c)her evidence that her agent gave wrong information.[53]
[49] CB 91, [8]
[50] CB 93, [21]
[51] CB 91, [4]
[52] CB 93, [19]; CB 94, [22]
[53] CB 91, [8]; CB 94, [23]
The Tribunal noted that Ms Mahato claimed she agreed to enrol in an IT course because her agent told her it would result in a longer student visa but found this was not a legitimate reason to enrol in a course of study.[54] Again, the contentions in Ground 3 go no further than expressing emphatic disagreement with the Tribunal’s findings.
[54] CB 94, [23]
Ground 4
Ground 4 alleges that Ms Mahato was denied procedural fairness because the Tribunal made findings[55] without raising these issues with her. Ms Mahato failed to specify how the Tribunal breached the generally exhaustive procedural fairness obligations provided in Part 5, Division 5 of the Migration Act.[56] Insofar as Ground 4 suggests a breach of s.360 of the Migration Act of the kind identified in SZBEL v Minister for Immigration,[57] such complaint cannot succeed. Ms Mahato was squarely on notice of the dispositive issue, namely whether she intended to stay in Australia temporarily, by way of the delegate’s decision[58] and invitation to hearing letter dated 8 November 2017[59] which enclosed a copy of the Direction.[60] The transcript also reveals that at the commencement of the hearing the Tribunal Member explained that the issue was whether Ms Mahato was a genuine temporary entrant to study and discussed the factors it was required to consider under the Direction.[61] Ms Mahato’s submissions contend that the Tribunal made particular findings without giving her an opportunity to comment, however the Tribunal was not required to give Ms Mahato a running commentary on its thought processes or what it thought about the evidence given.[62] No breach of s.360 is demonstrated.
[55] CB 93, [21]
[56] section 357A
[57] (2006) 228 CLR 152
[58] CB 33-37
[59] CB 52
[60] CB 59-63
[61] Transcript, page 2 at lines 27-39
[62] SZBEL at [48]
Ground 5
Ground 5 contends that the Tribunal reached a mistaken conclusion and misconstrued the “GTE requirement”. Particulars (a)-(d) take issue with various aspects of the Tribunal’s findings at [19]-[22][63] and make various complaints that the Tribunal failed to undertake research and reached incorrect conclusions. The particulars essentially repeat complaints raised in previous grounds, dispute the Tribunal’s reasoning and invite impermissible merits review. Ms Mahato alleges that the Tribunal ought to have “done research” about living arrangements in Nepal after marriage and her employability, but these complaints misconceive the role of the Tribunal. It was for Ms Mahato to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction,[64] and the Tribunal was not required to make Ms Mahato’s case for her.[65] In addition, Ms Mahato has not pointed to any “critical fact” or “obvious enquiry” that would have been easily ascertainable by the Tribunal.[66] Nor has Ms Mahato demonstrated how the asserted failure to inquire affected the outcome of review.[67] No jurisdictional error is identified.
[63] CB 93-94
[64] Lay Lat at [76]
[65] Abebe at [187]; Prasad at 176
[66] Minister for Immigration v SZIAI (2009) 259 ALR 429
[67] Minister for Immigration v FOE17 [2020] FCAFC 73 at [61]
Ground 6
Ground 6 asserts that the Tribunal asked the wrong question but the particulars misconstrue the Tribunal’s actual questioning and findings. Contrary to particular (a), the Tribunal did not “raise concern” about Ms Mahato’s husband. Instead, the Tribunal simply asked Ms Mahato if her husband was Australian and she responded that he also held a student visa.[68] Ms Mahato’s circumstances in Australia were plainly relevant to the issue before the Tribunal. Ms Mahato also complains about the Tribunal asking her about her incentive to return to Nepal and her husband’s willingness to return to Nepal, however these questions were also plainly relevant to her circumstances in her home country and in Australia. The Tribunal was required to take these factors into account under the Direction. No jurisdictional error is identified in Ground 6.
[68] Transcript, page 5 at lines 21-29
Ground 7
Ground 7 asserts that the Tribunal’s decision was unreasonable because it appeared to be unaware of the “professional year”.[69] Ms Mahato complains that the Tribunal should have been aware of this “basic process as to the migration regulation and system” and therefore failed to discharge its duty. The transcript does not reveal that the Tribunal was unaware of the “professional year” but even if it was, it is not apparent how this amounted to jurisdictional error. There is nothing to suggest the Tribunal misconceived or misunderstood Ms Mahato’s claims or evidence in any material way.
[69] see Transcript, page 4 at lines 4 and 18
Particular (b) contends that the Tribunal did not ask Ms Mahato about the value of the course as required by the Direction and her migration agent had to raise this issue with the Tribunal.[70] First, this complaint fails at a factual level. When questioning Ms Mahato about her courses, she voluntarily gave information about the value of the Human Resources course to her future.[71] Ms Mahato’s migration agent added to this information at the conclusion of the hearing. Secondly, the Tribunal was not required to make Ms Mahato’s case for her. Ms Mahato was aware of the issues before the Tribunal and the factors that would be considered under the Direction. She had every opportunity to advance evidence relevant to the value of her course to the future and the Tribunal had regard to this evidence in its decision.[72] In any event, the Tribunal was not obliged to prompt and stimulate an elaboration on which Ms Mahato chose not to embark.[73]
[70] Transcript, page 8 at line 45; page 9 at line 9
[71] Transcript, page 3 at lines 23-45
[72] CB 93, [21]
[73] Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437
There is also no basis to Ms Mahato’s complaint in her submissions that the Tribunal failed to consider the value of the course as required by the Direction, given the Tribunal’s findings at [21].[74]
[74] CB 93
Ms Mahato’s submissions complain that her migration agent gave evidence to the Tribunal which was not permitted under the Migration Act, however as noted above, this is an inaccurate representation of what occurred at the hearing. At the conclusion of her oral evidence, the Tribunal invited Ms Mahato’s representative to make a submission.[75] Ms Mahato’s representative invited the Tribunal to question Ms Mahato about her reason for not returning to Nepal since 2012 and the value of her course. The Tribunal indicated that this information had already been provided but nonetheless invited Ms Mahato to add to her evidence about the value of the course,[76] which she did.[77] Ms Mahato’s representative then proceeded to make oral submissions as to why his client met the criteria in clause 500.212(a),[78] in accordance with s.366A of the Migration Act. No error is made out by Ground 7.
[75] Transcript, page 8 at line 36
[76] Transcript, page 9 at line 13
[77] Transcript, page 9 at line 17
[78] Transcript, pages 9-10
Ground 8
Ground 8 contends the Tribunal’s decision was unreasonable because:
a)it was based on hypothetical assumptions;
b)it did no research of their own;
c)it disregarded Ms Mahato’s home country’s laws;
d)it made assumptions as to Ms Mahato’s employment; and
e)made assumptions about Ms Mahato returning.
Again, these complaints are bland assertions of disagreement with the Tribunal’s findings. The Tribunal was entitled to evaluate Ms Mahato’s claims and evidence and make findings as required by clause 500.212(a). It was not required to undertake its own research and did not make “assumptions” about Ms Mahato’s circumstances, but rather formed its own view on the basis of her claims and evidence.
Conclusion
I conclude that Ms Mahato is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 May 2020
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