SAPKOTA v Minister for Immigration
[2020] FCCA 1494
•10 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAPKOTA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1494 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa – dependent of primary applicant – whether genuine temporary entrant – error of fact – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Cases cited: He v Minister for Immigration and Border Protection (2017) 255 FCR 41; 161 ALD 17; [2017] FCAFC 206 |
| Applicant: | BIKASH SAPKOTA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1575 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 11 February 2019 |
| Date of Last Submission: | 11 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2020 |
REPRESENTATION
| The Applicant: | In person with the assistance of an interpreter |
| Counsel for the First Respondent: | Ms Lucas |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
Pursuant to rule 7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,437.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1575 of 2016
| BIKASH SAPKOTA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 25 July 2016 (Application), the Applicant seeks judicial review of a decision of the Second Respondent (Tribunal) made on 29 June 2016. The Tribunal affirmed a decision of a delegate (Delegate) of the then Minister for Immigration and Border Protection (Minister) not to grant the Applicant a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa (Visa) as a dependent on his wife’s visa (Wife).
The Application was listed before another Judge of this Court for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules) on 21 September 2017. On that date, Orders were made dismissing the Minister’s application for a show cause hearing and listing the matter for final hearing before the Court (along with Orders enabling the parties to file and serve any further material). The Orders further provided for the Minister to file and serve a copy of the audio recording and transcript of the Tribunal hearing.
In reaching its decision, the Court has considered the following documents filed by the parties:
a)Application;
b)Affidavit of the Applicant filed on 8 July 2016;
c)Court Book filed by the Minister on 12 January 2017;
d)Outline of Submissions filed by the Applicant on 8 March 2017 (Applicant’s Submissions);
e)Outline of Submissions filed by the Minister on 17 March 2017 (Minister’s Submissions);
f)Affidavit of Justin Adam Lipinski filed by the Minister on 12 October 2017, which annexed a copy of the Tribunal hearing transcript at Annexure JAL-4 (Tribunal Hearing Transcript);
g)Further Submissions filed by the Applicant on 4 December 2017 (Applicant’s Further Submissions); and
h)Outline of Further Submissions filed by the Minister on 22 December 2017 (Minister’s Further Submissions).
The Court has also reviewed the transcript of the hearing that took place before the Court (Transcript).
Background
The Applicant is a national of Nepal. He first arrived in Australia on a Student (Class TU) (Subclass 572) visa on 16 May 2009[1]. The Applicant subsequently held further student visas after this, with his most recent visa due to expire on 7 December 2014[2].
[1] Court Book (CB) 123.
[2] CB 123.
On 29 November 2014, the Applicant and his Wife married. The Wife was granted a subclass 573 visa on 23 November 2013[3]. The Applicant applied for the Visa on 5 December 2014 as a member of his Wife’s family unit (Visa Application)[4]. At the time of the Visa Application, the Applicant was represented by a migration agent (First Migration Agent).
[3] CB 10.
[4] CB 1-39.
On 9 December 2014, the Minister’s department (Department) emailed the First Migration Agent a request that the Applicant provide further information, including (among other things) the Applicant’s marriage certificate and evidence that the Applicant satisfied the genuine temporary entrant criterion contained in cl.572.326(aa) of sch.2 to the Migration Regulations1994 (Cth) (Regulations)[5].
[5] CB 49-57.
On 5 January 2015 and again on 8 January 2015, the First Migration Agent emailed the Department additional information and evidence, including a statement by the Applicant and his Wife, education certificates and documents relating to their wedding[6].
[6] CB 58-109.
On 20 February 2015, the Department emailed the First Migration Agent to inform him of the Delegate’s decision, dated 20 February 2015 to refuse to grant the Applicant the Visa (Delegate’s Decision)[7]. The Delegate was not satisfied that the Applicant genuinely intended to stay in Australia temporarily, and therefore concluded that the Applicant did not meet the requirements of cl.572.326 of sch.2 to the Regulations[8].
[7] CB 110-127.
[8] CB 121-127.
On 10 March 2015, the Applicant applied to the Tribunal for a review of the Delegate’s Decision[9].
[9] CB 128-141.
On 10 March 2016, the Tribunal emailed the First Migration Agent to invite the Applicant to attend a hearing to give evidence and present arguments (Hearing Invitation)[10]. The Hearing Invitation requested that the Applicant provide a number of documents and information at least seven (7) days before the hearing.
[10] CB 156-172.
On 18 May 2016, the Tribunal sent a further hearing invitation to the First Migration Agent, which rescheduled the original hearing date, and was otherwise in terms identical to the First Hearing Invitation (Second Hearing Invitation)[11].
[11] CB 174-190.
On 31 May 2016, 2 June 2016 and 7 June 2016, the Applicant, through a new migration agent (Second Migration Agent), provided the Tribunal with his supporting documents[12]. On 8 June 2016, the Applicant, his Wife and the Second Migration Agent attended the hearing before the Tribunal[13].
[12] CB 202-229.
[13] CB 234-235.
On 21 June 2016, the Second Migration Agent emailed the Tribunal additional submissions on behalf of the Applicant[14].
[14] CB 245-250.
Tribunal’s Decision
The Tribunal made its decision on 29 June 2016 to affirm the Delegate’s Decision not to grant the Applicant the Visa (Tribunal’s Decision)[15]. In its decision, the Tribunal outlined the background to the review application[16]. The Tribunal outlined the relevant law, namely, cl.572.326 of sch.2 to the Regulations, and matters outlined in Ministerial Direction 53 – Assessing the genuine temporary entrant criterion for Student visa applications (Direction 53), made pursuant to s.499 of the Migration Act 1958 (Cth) (Act) [17]. The Tribunal further outlined the relevant interpretation of the phrase “intends genuinely to stay in Australia temporarily” as considered in Saini v Minister for Immigration and Border Protection [2015] FCCA 2379 and Singh v Minister for Immigration and Border Protection [2015] FCCA 2451[18].
[15] CB 257-264.
[16] CB 258, at [1]-[5].
[17] CB 258-259, at [9]-[11].
[18] CB 262, at [31].
The Tribunal outlined the Applicant’s evidence and submissions, including a written statement that was provided by the Applicant to the Tribunal following the hearing[19], and the evidence and submissions of his Wife[20]. The Tribunal then considered whether the Applicant intended to stay in Australia temporarily on the evidence before it, having regard to the factors in Direction 53[21] .
[19] CB 259-260, at [13]-[19], 261, at [25].
[20] CB 261, at [20]-[24].
[21] CB 261-264, at [26]-[43].
In relation to the Applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the courses to the Applicant’s future, the Tribunal:
a)Acknowledged that the Applicant’s family remained in Nepal and that his family’s financial circumstances were not a “disincentive” to return[22];
b)Considered the Applicant’s potential circumstances in Australia (including his employment) were an incentive to remain[23];
c)Gave weight to the Applicant’s “frank” oral evidence at hearing that he may seek to extend his stay in Australia for employment purposes[24]; and
d)Balanced the Applicant’s circumstances in Nepal against the low level of the unrelated courses he has undertaken, the length of time he took to complete them, and his acknowledgement that he may seek to remain in Australia, to conclude that the Applicant was using the student visa programme primarily to maintain residence in Australia until another or better option arises for him to remain[25].
[22] CB 262, at [28].
[23] CB 262, at [29]-[30].
[24] CB 262, at [32].
[25] CB 262, at [34].
In relation to the Applicant’s immigration history, the Tribunal concluded that this indicated that the Applicant did not have a genuine intention to stay in Australia as a student as[26]:
35. There is no evidence before the Tribunal that the applicant made any previous visa applications for Australia prior to the student visas and the subclass 485 visa for which he applied. Nor does it have information in relation to his visa applications to other countries (if any).
36. In relation to his Australian immigration history, the Tribunal finds that the applicant arrived in Australia in May 2009 on a subclass 572 visa valid until 3 September 2011. It was granted on the basis of his plans to study business management. Up until December 2014, the applicant held student visas or bridging visas with study rights and had been in Australia for a period of over 5 years but at that stage had only completed a Certificate IV and Diploma in Information Technology. He was continuing to study a Certificate Ill in Light vehicle Mechanical Technology which he later completed but has cancelled his enrolment in a Certificate IV in Automotive Mechanical Diagnosis. In their evidence at hearing, both he and his wife indicated that he has done so in order to support her completion of her qualifications at which time he may recommence his study. Following the hearing the applicant provided a statement in which he said he did not plan to undertake any further study in Australia.
[26] CB 263, at [35]-[37].
As to any other relevant information available, the Tribunal:
a)Noted that over the course of his time in Australia, the Applicant regressed in the level of study he was undertaking and when combined with his change to automotive studies from his planned business studies and his acknowledgement that this course will be of little value to him in Nepal, the Tribunal came to the conclusion that he had undertaken the courses in Australia as a means of maintaining ongoing residence[27];
b)Took into account the statement that the Applicant wanted to return to Nepal because of his strong family ties. However, on the basis of the Applicant’s oral evidence before it, and the vagueness of his stated aims in returning, the Tribunal gave the statement little weight in its considerations[28]; and
c)Referred to the course in which the Applicant’s Wife currently had a confirmation of enrolment not being scheduled to be completed until 2018 and the Tribunal not being persuaded that the Applicant genuinely intended to depart at the end of this study[29].
[27] CB 263, at [39].
[28] CB 263, at [40].
[29] CB 263, at [40].
The Tribunal concluded[30]:
The Tribunal has considered the totality of the applicant’s circumstances, including his explanations and evidence, but finds that the fact of the applicant’s long period in Australia, his study history as the prior primary holder of a student visa, along with his expressed desire to remain in Australia, indicate that the student visa program is being used in the case of the applicant primarily to maintain residence in Australia and to circumvent the migration program.
[30] CB 263, at [41].
The Tribunal concluded that it was not satisfied that the Applicant genuinely intended to stay in Australia temporarily, and accordingly did not meet the criterion in cl.572.326(aa) of sch.2 to the Regulations (being the genuine temporary entrant criterion)[31] As such, the Tribunal affirmed the Delegate’s Decision not to grant the Applicant the Visa.
[31] CB 264, at [41]-[45].
Application for Judicial Review
The Applicant filed the Application for judicial review in this Court on 25 July 2016. The Applicant was not legally represented. As mentioned above at [2], the Minister applied for a show cause hearing, which was heard by another Judge of this Court on 21 September 2017. On 21 September 2017, the Minister’s application for a show cause hearing was dismissed and the matter was listed for final hearing.
When the matter was heard by the Court, the Applicant appeared in person and an interpreter in the Nepali and English languages was available to assist the Applicant. The Applicant informed the Court that he did not require everything to be interpreted. The Applicant indicated that he was content to proceed on the basis that if he required something interpreted, he would request an interpretation.
The Applicant’s Grounds of Review are set out in his Application as follows:
1.According to the tribunal the time of our courting was very short that is 3 months and that we married in a hurry because of my visa condition. In our cultur the decision to get married is soley on our family and it is very common to get married in short period of time The tribunal didn’t give any consideration to my cultural background while making this assessment.
2.After carefully reading the refusal of Tribunal we came to realize that during the hearing alot of things didn’t came across the way we wanted to say it. As our first languag isn’t English and we didn’t keep an interpreter therefore their seem to have a lot of miscommunication.
3.The tribunal is not very impressed with my immigration history. She has pointed out that I have not progressed academically and am using the student visa program to prolong my stay in Australia. I would like to point out that I have never breached any of my visa condition and have complete every course I have enrolled in.
(Without alteration)
The Applicant’s Submissions essentially re-stated and effectively particularised Grounds 1-3 of his Application. The Applicant’s Submissions, however, included an additional submission that, in summary, the Tribunal’s finding that he completed only 6 of 21 enrolments is factually incorrect.
The Applicant’s Further Submissions again further particularised the Applicant’s Grounds 1-3, including pinpoint references to the Tribunal Hearing Transcript.
The Minister’s position is that the Tribunal did not engage in jurisdictional error, the Applicant’s Grounds fail, and accordingly the Application should be dismissed.
The Court will address each of the Applicant’s Grounds in turn.
Consideration
Ground 1
In Ground 1, the first dot point of the Applicant’s Submissions and the third dot point of the Applicant’s Further Submissions, the Applicant submits that the Tribunal failed to consider his cultural background when it found that the “short period of time” during which the Applicant and his Wife courted prior to marrying was due to his Visa conditions.
In particular, the Applicant submits that three months of courting is considered a long time in Nepalese culture, there is no culture of dating in Nepalese culture, their parents arranged the marriage and there was a lot of social pressure to marry. The Court notes that the Applicant acknowledges that he explained this to the Tribunal Member, however the Tribunal Member failed to take this into consideration.
The Minister submits that the Tribunal’s findings and reasons for its decision do not suggest that the circumstances of the Applicant and his Wife’s wedding were determinative; no adverse findings were made on the basis of that issue. The Minister submits that no error arises because this alleged failure to consider the Applicant’s cultural background to his marriage did not affect the Tribunal’s Decision.
The Tribunal’s consideration as outlined above, the Minister submits, evinces a clear engagement in the requisite “active intellectual process” required in applying Direction 53: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248, at [57]-[58]. Further, the Minister submits that the Court shall not “lightly infer” that the Tribunal has overlooked evidence: Minister for Immigration and Citizenship v MZYZA [2013] FCA 572, at [30]. To the extent that the Applicant challenges the weight given by the Tribunal to the evidence before it, the Minister submits that questions of the appropriate weight to be given to evidence are for the decision-maker, not the Court: Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Anor (1986) 162 CLR 24, at 41 (per Mason J). The Minister submitted that in order to establish jurisdictional error on the basis of Ground 1, the Applicant would need to establish that a finding had been made that was illogical, irrational or without evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 115 ALD 248, at [130]-[131].
It is true that the Tribunal summarised the Applicant and the Wife’s evidence about their marriage[32]. The Tribunal gave the Applicant and the Wife an opportunity to respond to its “observation” that their wedding coincided with the expiry of the Applicant’s previous visa and this suggested that the marriage may have been for the reason of extending his stay in Australia[33]. At [27], the Tribunal stated:
Having regard to the evidence before it of the applicant’s circumstances, and for further reasons below, the Tribunal is not satisfied that he genuinely intends to stay in Australia temporarily.
[32] CB 260-261, at [14]-[15], [21] and [24].
[33] CB 260-261, at [15] and [24].
No finding was ever made that the Applicant and his Wife’s marriage was entered into for the reason of maintaining the Applicant’s residence in Australia. While the Tribunal put concerns to the Applicant and his Wife about the timing of the wedding and the cease of his previous visa, the Tribunal does not appear to take the matter any further in it reasons. The reason for this is found in [24] of the Tribunal’s decision which states:
The Tribunal put to her the observation that the applicant’s study history and migration history indicated that he was using the student visa program to maintain residency in Australia and was not a genuine temporary entrant. In addition, their marriage, just before his visa ceased, tended to reinforce this view. She responded that marriages are arranged all the time in Nepal and that such decisions are made by family. When the applicant had suggested they get married she simply agreed. She said their families already knew each other and they were close. She denied that she and the applicant had discussed remaining in Australia.
(Emphasis added)
Hence, the timing of the marriage was simply reinforcing the view the Tribunal had based on the Applicant’s study and migration history and which, relevantly, the Tribunal canvasses in great detail in determining that the Applicant was not a genuine temporary entrant.
Reading the reasons at a whole, it is apparent that the Tribunal did not consider the “cultural reasons” for the marriage occurring so closely to the expiry of the visa because it was not necessary or relevant to do so. The Applicant’s study and immigration history alone were sufficient to satisfy the Tribunal that the Applicant did not have genuine intention to remain in Australia temporarily.
The Court also refers to [41] and [42] of the Tribunal’s Decision:
41. The Tribunal has considered the totality of the applicant’s circumstances, including his explanations and evidence, but finds that the fact of the applicant’s long period in Australia, his study history as the prior primary holder of a student visa, along with his expressed desire to remain in Australia, indicate that the student visa program is being used in the case of the applicant primarily to maintain residence in Australia and to circumvent the migration program.
42. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.
It is patently clear in the Court’s view that the Tribunal did not consider the proximity of the Applicant’s and his wife’s wedding to be of any significance in its determination. The Tribunal’s reasons are those summarised in [41] which do not include his relationship or the circumstances in which it transpired.
To the extent the Tribunal states at [27] for “further reasons below”, the Court does not take this to mean that the discussion with the Applicant and his wife about their relationship was a “reason” for the decision. It was simply a reference to the circumstances that had been discussed which the Tribunal had “regard” to. The weight it placed on those circumstances was a matter for it and the fact that the Tribunal made no finding in relation to the proximity of the wedding and the Visa Application indicates that the Tribunal did not find it relevant.
The failure to consider the “cultural” explanations was not necessary in these circumstances as the Court does not consider that the Tribunal placed any weight on the Applicant and Wife’s relationship.
Further, to the extent that this may be suggesting it was “illogical” for the Tribunal to have raised concerns or considered the proximity of the wedding to the Visa Application, this must be rejected. The sheer fact of the proximity provides an evident and intelligible basis in the Court’s view for such inquiries to be made. The Tribunal was entitled to pursue this line of enquiry if it chose to do so.
Ground 1 is dismissed.
Ground 2
The Applicant, by Ground 2 of the Application, the fourth dot point of the Applicant’s Submissions and the first dot point of the Applicant’s Further Submissions, submits that as he did not have the benefit of an interpreter during the Tribunal hearing, there was some miscommunication that affected the Tribunal’s Decision. The Applicant points to a particular exchange which is discussed below.
The Minister submits that the Tribunal afforded the Applicant procedural fairness pursuant to s.360 of the Act. The Minister referred the Court to the decision of MZYJW v Minister for Immigration and Citizenship [2011] FMCA 534 (MZYJW), a decision in which the Court held that a failure to provide an interpreter did not amount to an error on the part of the Tribunal in circumstances where:
a)An interpreter was not requested;
b)The applicant attended the hearing with a migration agent; and
c)The transcript demonstrated that the applicant was clearly able to participate in a meaningful way in the hearing.
The Minister submits that the circumstances in MZYJW are analogous to the present case.
The Applicant received the Hearing Invitation on 10 March 2016, and the Second Hearing Invitation on 18 May 2016, by email to the First Migration Agent. The hearing invitations each included, on the same page as the hearing details, the following statement in bold text:
Interpreter: Please advise us at least 7 days before the hearing if you require an interpreter.[34]
[34] CB 158 and 176.
Also included in the information included with each of the hearing invitations was the following:
Will an interpreter be provided at the hearing?
If requested, we will arrange for an interpreter to be at the hearing. The interpreter will be a qualified interpreter from an interpreter service - it is our policy not to use family members, friends or representatives as an interpreter.
If you are not satisfied with the interpreting before or during the hearing, it is important that you tell the Member or the hearing attendant as soon as possible.
The Second Migration Agent responded to the Hearing Invitation on 31 May 2016, and expressly ticked the box to indicate that no interpreter was required[35].
[35] CB 204.
At the Tribunal hearing, the Second Migration Agent was in attendance as the Applicant’s representative[36]. The Tribunal Hearing Transcript reveals that neither the Applicant’s representative nor the Applicant interjected or raised any issues in relation to communication during the hearing. The Second Migration Agent was given an opportunity to provide any submissions after the hearing. Submissions from the Applicant and his Wife were made and at no time refer to any issues with understanding or miscommunicating with the Tribunal.
[36] CB 234.
Finally, a reading of the Tribunal Hearing Transcript, as a whole, does not demonstrate that the Applicant was unable to participate or engage with the Tribunal in a meaningful way. While at times the Applicant used incorrect tenses or grammar, and was repetitive in his speech, the Applicant ultimately provided responsive answers to the questions put to him that do not demonstrate that he misunderstood the question. The Tribunal repeated back to the Applicant answers to his questions on many occasions and at no time did he correct the Tribunal.
Accordingly, the Court does not accept that there was any denial of procedural fairness or any other jurisdictional error in the Applicant (or his Wife) not having the assistance of an interpreter.
With respect to the specific incidence of “miscommunication”, the Applicant points to the following exchange as an example of that miscommunication that has influenced the Tribunal decision:[37]
MS COOPER: […] So what did you want to study when you came to Australia?
MR SAPKOTA: I just want to continue my -like, I don’t have better English at that time so I think I’m doing the English course and then to do the business management. That’s what I did when I came, that’s what I did arriving in Australia[38].
[37] Tribunal Hearing Transcript, P6, L:15.
[38] Tribunal Hearing Transcript, P6, L:12-17.
The Applicant says that during this exchange he “clearly stated that [he] came to Australia for English and business management and completed it”[39], and that he further provided the certificate of his business management course[40]. The Applicant however notes that at [36] of the Tribunal’s Decision, the Tribunal finds that he only completed a Certificate IV and Diploma of Information Technology in his five year stay in Australia.
[39] Applicant’s Further Submissions, 1.
[40] CB 71-76.
At [36], the Tribunal states:
In relation to his Australian immigration history, the Tribunal finds that the applicant arrived in Australia in May 2009 on a subclass 572 visa valid until 3 September 2011. It was granted on the basis of his plans to study business management. Up until December 2014, the applicant held student visas or bridging visas with study rights and had been in Australia for a period of over 5 years but at that stage had only completed a Certificate IV and Diploma in Information Technology. He was continuing to study a Certificate Ill in Light vehicle Mechanical Technology which he later completed but has cancelled his enrolment in a Certificate IV in Automotive Mechanical Diagnosis. In their evidence at hearing, both he and his wife indicated that he has done so in order to support her completion of her qualifications at which time he may recommence his study. Following the hearing the applicant provided a statement in which he said he did not plan to undertake any further study in Australia.
The Minister submits that:
a)The Tribunal correctly understood that the Applicant had arrived in Australia on the basis of his plans to study English and undertake business management courses, and that he had completed various courses in business;
b)The Tribunal’s finding that “the applicant held student visas or bridging visas with study rights and had been in Australia for a period of over 5 years but at that stage had only completed a Certificate IV and Diploma in Information Technology”[41] was at most, imprecise language, which may amount to an error of fact; and
c)Such an error does not amount to jurisdictional error as the Tribunal was already aware of the evidence and material before it that the Applicant had completed a course in business management.
[41] CB 263, at [36].
This ground is premised on what the Applicant believes to have been a miscommunication of his evidence. There was no miscommunication. At [13], the Tribunal expressly states:
[…] He said he had completed courses in business and IT but had dropped IT to commence automotive studies because he was working in an automotive shop.
Therefore, on a factual level this ground fails.
However, the Applicant is correct to note that the Tribunal finding at [36], that the Applicant was that he had only completed IT courses, was incorrect. Read as a whole, it is apparent that the Tribunal’s reference to the Applicant’s “prior study history” includes the matters referred to in [34], [36] and [39] and that the factual error in [36] is of no material effect. It was an error of fact within jurisdiction.
An additional instance of alleged miscommunication should also be addressed. During the show cause hearing before the Court, the Applicant orally raised an issue of miscommunication at the Tribunal hearing, namely, that he referenced “sisters” and his Wife referenced “cousins” and “sisters”, while referring to the same people. The Applicant again submitted that this may have affected the Tribunal’s decision.
While the Applicant did not advance this argument in the Applicant’s Further Submissions, the Minister, in its role as model litigant, raised it in the Minister’s Further Submissions. The Minster submits as follows:
a)The Applicant informed the Tribunal that his Wife had a “sister” in Australia [42], while his Wife informed the Tribunal that she had a “cousin” in Australia[43];
b)The Tribunal noted the discrepancy in their evidence[44];
c)In considering whether the Applicant genuinely intended to remain in Australia temporarily, the Tribunal noted that the Applicant and his Wife had many relatives in Australia[45];
d)It is not apparent that the Tribunal made any adverse findings regarding the discrepancy in the Applicant and his Wife’s account of her having a “sister” or a “cousin” in Australia. The Tribunal merely noted that inconsistency; and
e)Any allegation of error based on this alleged miscommunication is not made out.
[42] Tribunal Hearing Transcript, P10, L:13-31.
[43] Tribunal Hearing Transcript, P19, L45-47; P20, L:1-29.
[44] CB 261, at [21].
[45] CB 262, at [30].
The Court agrees with the Minister’s submissions. The inconsistency in the Applicant and his Wife’s evidence was merely noted by the Tribunal. No adverse credibility finding was made by the Tribunal flowing from that inconsistency in their evidence. The Tribunal specifically found the Applicant to be a “frank and credible witness” at [32] of its reasons. Further, nothing turned on the issue of whether the Wife had a sister or a cousin living in Australia. Rather, the Tribunal noted the inconsistency in their evidence, noted that they both had family in Nepal, and otherwise, did not make any finding in considering the question of whether the Applicant was a genuine temporary entrant, adverse or otherwise, on the basis of that inconsistency.
Ground 2 is dismissed.
Ground 3
The Applicant complains that the Tribunal incorrectly found that the Applicant had not progressed academically and that he was using the student visa programme to extend his stay in Australia. The Applicant asserts that he never breached any visa condition and has completed every course in which he was enrolled.
In particular, the Applicant submits that the Tribunal member incorrectly stated that he had only completed six of the 21 courses in which he had been enrolled[46]. The Applicant submits that his Provider Registration and International Student Management System (PRISMS) record indicate that he has completed eight courses of 10 courses in which the Applicant had been enrolled. The Applicant submits that the Tribunal had “no idea” about his work, education, qualifications and visa history,[47] including that the Tribunal incorrectly found that he applied for a student visa (while the Applicant says he applied for a student-dependent visa). The Applicant submits that the Tribunal therefore did not properly consider matters as required by Direction 53[48].
[46] Applicant’s Further Submissions, 2; Tribunal Hearing Transcript, P13, L:29-46.
[47] Transcript, P21, L:10-12.
[48] Transcript, P21-L22.
The Minister concedes that there was an error of fact regarding the Applicant’s studies. The Minister however notes that the Applicant’s PRISMS record was not before the Tribunal[49]; rather, the Tribunal reached this conclusion by relying on the Delegate’s Decision, which is permissible. The Minister submits that ordinarily, an error of fact will not amount to a jurisdictional error: SZVHP v Minister for Immigration and Border Protection [2016] FCA 270, at [39]. The Minister contends that the error of fact in this case, in particular, does not amount to jurisdictional error as it does not alone form the basis of the Tribunal’s findings.
[49] Transcript, P10, L:32-37.
To the extent that the Applicant states that he had never breached any visa conditions, these are matters that are directed to the merits of the Tribunal’s Decision and consideration. The Applicant does not appear to have made any submission regarding compliance with visa conditions previously and the Tribunal, in any event, did not determine or make any reference to the Applicant’s previous visa condition compliance. As such, no jurisdictional error arises.
During the course of the Tribunal hearing, the Tribunal stated the following to the Applicant[50]:
The delegate’s decision says you’ve been here a long time and you’ve only completed six of 21 enrolments. Is that right? It was in the delegate’s - the decision. You sent a copy with your visa application. Yes, six of 21. In examination of the provider registration in the International Student Management System indicated that since your initial visa date you’ve completed six of 21 enrolments you have previously held including a package of courses leading to a qualification in a Diploma of Information Technology. What the delegate said and what that sort of thing suggests is that you haven’t progressed academically. In fact you’ve gone backwards academically. You’ve done diplomas and yet the last qualification you did was for Certificate III.
The number of enrolments you’ve had, the low completion level, all indicates that you’re maybe only enrolling for student - for courses for the purposes of maintaining your residency in Australia. So is there anything you wanted to say about that? And the fact of your marriage just at the end of your visa really enforces that impression. So is there anything you wanted to say about that because the requirement that you have to meet or the requirement on which this application has been refused is the requirement that you have to genuinely intend to stay in Australia temporarily. And it seems to me you want to stay here permanently and you’re doing whatever you can to stay.
[50] Tribunal Hearing Transcript, P:13-14, L:29-46 and L:1-2.
At no time did the Applicant state to the Tribunal that the Delegate was incorrect.
At [12], the Tribunal records as follows:
As recorded in the delegate’s decision, a copy of which was supplied with the review application, the delegate considered that, on the basis of the applicant’s study history, overall lack of academic progress in his completion of only 6 courses out of 21 enrolments, his potential circumstances in Australia, his immigration history and the lack of value of his courses to his future, that he was using the student visa program to circumvent permanent migration programs and he was not satisfied that he is a genuine applicant for entry and as a student dependent visa holder or that he intends to stay in Australia temporarily.
However, the Tribunal at no time refers to the Applicant having completed only 6 of 21 enrolments. Hence, the Tribunal’s statement was made in the context of setting out the Delegate’s findings. It cannot be said that this amounts to jurisdictional error alone.
The Tribunal does refer to the Applicant having “regressed in the level of study he was undertaking”[51]. It appears that this is what the Applicant is taking issue with. He misunderstands the context in which the Tribunal has made this finding. The Tribunal in making this comment that the Applicant has “regressed” in his study is in the context that the Applicant has completed study at a higher level to which he was last enrolled. That is, the Applicant had completed his study at a “Diploma” level, but in his most recent study had, in effect, gone backwards, and was completing only a Certificate III.
[51] CB 263, at [39]
The finding that the Applicant had “regressed” is not, in the Court’s view, linked to the Delegate’s assertion that the Applicant had completed only 6 courses out of 21 enrolments. It was based on the Applicant’s own evidence of the courses that he had undertaken (i.e., a Diploma in IT and most recently a Certificate III in Light vehicle Mechanical Technology).
The Court has considered whether the Tribunal’s reference to (and potential acceptance of) the Delegate’s statement that the Applicant had completed only 6 of 21 enrolments had the potential to “infect” the Tribunal’s reasoning. In that regard, the Court refers to Ground 2 and the error in stating that the Applicant only completed a Certificate IV and Diploma of Information Technology in his five year stay in Australia.
As noted in Ground 2, the Tribunal’s finding that the Applicant’s study history was a part of the reason for finding that he was not a genuine temporary entrant can be informed by the following matters:
a)That the Applicant had taken low level unrelated courses (i.e., Certificate and Diploma Courses in English, Business Management, IT and Automotive), had changed his study pathway and had taken some time to complete the courses; and
b)That the Applicant expressly indicated that he wished to remain in Australia and that the courses that he had undertaken (and was most recently enrolled in) were of no value to him in Nepal.
The Delegate’s incorrect reference did not have any bearing on the Tribunal’s consideration in the Court’s view. As the Tribunal’s reasons demonstrate, it was the Applicant’s study history generally that was in issue. It was not simply that he did not complete courses (which, relevantly the Tribunal did not actually find was the case). It was the type of course, the time it took to complete the courses and the value of the courses.
Ground 3 is dismissed.
Additional Ground
At the time of this hearing, the parties did not have the benefit of Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16. The Minister, in its role as model litigant, drew the Court’s attention to the decision of He v Minister for Immigration and Border Protection (2017) 255 FCR 41; 161 ALD 17; [2017] FCAFC 206 (He). The Court will briefly address this matter.
In He, the Full Court held that a decision-maker must actively engage in proper, genuine and realistic consideration of the matters contained in reg.1.15A(3) of the Regulations (He at [52]). However, the Full Court made it clear that the obligation does not require the decision-maker to make a specific finding as to each potentially relevant circumstance; it is only obliged to make necessary findings of fact to support the conclusion reached on each consideration (He at [71]).
While not explicitly raised by the Applicant, the Minister brought to the Court’s attention that the Tribunal’s Decision does not explicitly address particular considerations contained in Direction 53, namely, the military service commitments of the Applicant and the political and civil unrest in the Applicant’s home country as contained in [9](d) and (e) of Direction 53.
The Minister submitted that the Court can infer that the Tribunal did actually consider those matters, by reference to [10]-[11] of its decision where the Tribunal refers to Direction 53, and in combination with its finding at [28] of its decision that “[t]he tribunal has considered the applicant’s circumstances in relation to his home country”. The Tribunal, however, did not consider those factors important enough to explicitly set them out in its reasoning[52].
[52] Transcript P19, L:45-47.
The fact that the Tribunal did not expressly address these matters is not conclusive of these matters not having been considered. The Tribunal responds to the case as put by an applicant. Here, the Applicant never put in issue or submitted to be relevant any military service commitments or the political and civil unrest in Nepal. As such, it was unnecessary for the Tribunal to make any express finding. It can be safely inferred that the Tribunal did not consider such relevant or material.
The additional ground is dismissed.
Conclusion
The Applicant has not satisfied the Court that there is any jurisdictional error in the Tribunal’s Decision.
At the hearing, the Minister sought costs fixed in the sum of $7,467 in the event that the Application was dismissed. This amount is calculated in accordance with pt.3 div.1 item 3 of sch.1 to the Rules.
In these circumstances, there will be a further order that Applicant pay the Minister’s costs fixed in the sum of $7,467.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 10 June 2020
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