Sapkota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 1548
•23 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sapkota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 1548
File number(s): SYG 3022 of 2020 Judgment of: JUDGE ELDERSHAW Date of judgment: 23 September 2025 Catchwords: MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges that the Tribunal did not afford him procedural fairness – Where the applicant was found not to be a genuine temporary entrant – Application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 33
Migration Act1958 (Cth), ss 359AA, 359A, 474, 476
Migration Regulations 1994 (Cth), cl. 500.212
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Carrascalao v Minister for Immigration andBorder Protection (2017) 252 FCR 352
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Division: General Number of paragraphs: 101 Date of hearing: 19 August 2025 Place: Sydney Applicant: In person Solicitor for the First Respondent: Ms J. Schultz (Mills Oakley) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3022 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVI SAPKOTA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
23 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application filed on 29 December 2020 be dismissed.
2.The name of the first respondent be amended to the “Minister for Immigration and Citizenship”.
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 typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04of the Rules.
REASONS FOR JUDGMENT
JUDGE ELDERSHAW
INTRODUCTION
By his application filed on 29 December 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 10 December 2020 (Decision) concerning his application for a Student (Temporary) (Class TU) visa. By its Decision, the Tribunal affirmed a decision of the delegate of the First Respondent (Delegate) to refuse to grant the said visa.
The applicant seeks that the Decision be quashed and a writ of mandamus directed to the Tribunal requiring it to determine the Student Visa application according to law. The Minister seeks that the application be dismissed with costs.
DOCUMENTS
The applicant relies on his application and affidavit both filed on 29 December 2020. The Minister relies on his response filed 13 January 2021, Court Book filed 12 April 2021, and written submissions filed on 3 June 2025. The Court Book has been marked as Exhibit R-1.
In these Reasons, references to the Court Book are styled CB followed by the page number.
LEGAL FRAMEWORK
Section 476(1) of the Migration Act1958 (Cth) (Act) confers power on this Court to undertake judicial review of migration decisions where a writ of mandamus or prohibition, or an injunction is sought against a Commonwealth officer, subject to the limitations imposed by s 476(2). This Court’s power to review the Tribunal’s decision is limited to review for judicial error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The Court is not permitted to undertake a review of the merits of the application for a visa: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
Clause 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) sets out the criteria for the grant of subclass 500 student visas as follows:
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.
The subject matter of clause 500.212(a) of Schedule 2 of the Regulations is the “genuine temporary entrant criterion”.
In considering whether the applicant satisfies the genuine temporary entrant criterion, the Tribunal must apply Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications” (Direction). The Direction addresses various factors which guide the decision-making process relating to the genuine temporary entrant criterion.
BACKGROUND AND MIGRATION HISTORY
The applicant was born in Nepal on 26 February 1992. His parents and siblings live in Nepal, and he is not married.
The applicant first arrived in Australia on 15 September 2014 on a student visa. The applicant has returned to Nepal to visit his family for one month in November 2016 but has not otherwise departed Australia.
Between 27 October 2014 and 7 August 2015, the applicant undertook and completed a Certificate IV in Business and Management. Between 10 August 2015 and 20 May 2016, he undertook and completed a Diploma in Business and Management.
On 12 September 2018, the applicant applied to the Department of Home Affairs (as it was then known) (Department) for a student (subclass 500) visa (the visa application). At that time, the applicant was enrolled in a Diploma of Information Technology (to commence on 1 October 2018 and conclude on 29 September 2019), and an Advanced Diploma of Information Technology Project Management (to commence on 7 October 2019 and conclude on 4 April 2021). The applicant included a Statement of Purpose addressing the genuine temporary entrant criterion with the visa application, found at CB22ff, and I note its contents.
On 29 October 2018, the Delegate wrote to the applicant to request:
(a)the applicant’s curriculum vitae, which was to include his education and employment history and the relevant dates;
(b)a statement and evidence addressing why the applicant’s enrolment in a Bachelor of Information Technology and Systems was cancelled on 22 August 2018 due to non-payment of fees, that the last day of study was 16 April 2018 and there was no evidence before the delegate that the applicant studied again until 1 October 2018; and
(c)complete academic transcripts for the applicant’s study in Australia.
CB54 to CB80 comprise documents provided by the applicant to the Delegate, including a Verification of Relationship Certificate, financial documents relating to the applicant’s father, pay advice for the applicant for the period 1 November 2018 to 14 November 2018 and 18 October 2018 to 31 October 2018, financial documents concerning the applicant’s brother, the applicant’s resume, and a written statement from the applicant. The latter two documents are located at CB66 to CB71 and CB72 to CB73 respectively, and I note their contents.
On 5 December 2018, the Delegate refused the Application on the basis that the applicant had not satisfied the genuine temporary entrant criterion (Delegate’s Decision).
On 24 December 2018, the applicant lodged an application to review the Delegate’s Decision. With the application, the applicant provided a document styled “Letter for hearing of AAT” dated 24 December 2018, which appears at CB100 to CB106; and a psychological report from Mr Johan Crouch dated 3 December 2018, which appears at CB107 to CB112.
I note the contents of the written statement dated 24 December 2018. Without derogation from the totality of the psychological report, Mr Crouch recorded that the applicant attended on him for a mental health assessment and treatment recommendations on 3 December 2018. Under the heading “Assessment and Recommendations”, Mr Crouch wrote:
When considered as a whole, Mr Sapkota’s DASS 21 results, his description of his current symptoms of psychological distress, his description of his stressors, and his description of his mental health history, are associated with a current presentation of moderate depression.
However, from his description of his symptoms (and his severe loss of function) during the period between 2016 and mid-2018, it is possible that Mr Sapkota met the criteria for the diagnosis of Major Depression at the time, according to the ‘Diagnostic and Statistical Manual of Mental Disorders-5’ (DSM-5) classification.
Mr Sapkota’s stressors in 2016 were significant and involved the loss of his relationship with his partner, which he had hoped to marry. This loss appeared to trigger the episode of Major Depression.
Mr Sapkota’s stress was exacerbated by a long-term vulnerability towards depression, due to unresolved issues stemming from his childhood. Mr Sapkota described himself as being ‘broken’ due to a number of significant childhood factors.
Mr Sapkota’s history of depression makes him more vulnerable to episodes of Major Depression in periods of stress, such as during his relationship break-up in 2016.
It follows that it is in my opinion that Mr Sapkota’s break-up in his relationship in 2016 triggered an episode of Major Depression, with symptoms of hopelessness, helplessness, neglect of self-care and severe loss of function. This then impacted on his ability to maintain his studies.
Crucially, Mr Sapkota did not seek professional support at the time and also did not have an effective social support network in Australia to assist him with recovering from his mental health. This likely maintained his depression for longer.
Mr Sapkota reports that it was when his parents came to Australia in late 2017, and he had access to social supports, that he began to make a recovery in his mental health. Mr Sapkota reports that he began to reflect on his situation and future goals and was able to build hopefulness for his future. In October 2018, Mr Sapkota felt well enough to reengage in his studies.
It is recommended that Mr Sapkota is able to continue with his studies as part of his plan for recovery from Major Depression. Engagement in long term goals is a strong predictor of positive mental health outcomes.
It is also strongly recommended that Mr Sapkota access ongoing psychological support to maintain progress and prevent relapse, with particular focus on self-care and help-seeking behaviour. Sessions would also look at grief and loss issues from his past; to try to resolve underlying trauma from his childhood, Mr Sapkota has expressed an intention to follow my recommendation and will seek ongoing counselling through his educational institution.
By letter dated 9 April 2020, the Tribunal invited the applicant to provide further information by 23 April 2020, noting that the applicant needed, inter alia, to satisfy the genuine temporary entrant criterion, which would be assessed by reference to the Direction. A copy of the Direction was enclosed with the letter.
The applicant provided a completed Request for Student Visa Information (Request for Information) to the Tribunal. In the Request for Information:
(a)the applicant gave an enrolment and study history in which he stated that he had completed the Certificate IV of Business and Diploma of Business; and enrolled in, but did not complete a Bachelor of Business Information Systems, Bachelor of Information and Technology, and Diploma and Advanced Diploma of Information Technology.
(b)as to how and why he chose the education provider for the Australian course he was currently studying or proposed to study, the applicant said:
As mentioned above the course structure I chose for my study career plan was bit of stressful and un progressed. I came here to complete my bachelors degree followed by certificate IV in business And diploma. After completion of business i was lead to Bachelors of business information system. I had few year experience in IT field so had an interest to study bachelors in IT. But because having health conditions cannot undertake the proper education to achieve proposed outcome. So after few years of harsh struggle by myself from My mental health issues. Getting recovered too, as i completed my diploma in business. I would like to complete graduation in business so that i would get some credit and previous knowledge of those degree could provide me with some benefit in learning.
Doing some research I found Howard College Located in burwood so chose it as my education provider . As it is located in burwood it would fit perfectly for me being very close to the college would same my time for traveling and Would be great to be more productive as could save more time too. Of course the college has the degree i was looking for. So considering few needs I picked Howard College for further studies.
(c)as to whether there are similar courses in his home country or region and his reasons for not undertaking such study there, the applicant said:
Yeah there are such type of courses currently In my home country. But as mentioned i have lost few years destroying my educational career and progress. I had just few years of study and rest of the previous years were totally a failure. So considering my last achievement in education. Graduation diploma of Business Would give me some credit and ease for studying in Business and have a degree. As i have completed two years of course already in similar course structure since arrived in australia. I am now willing to get a higher level of degree. As all know best outcomes takes more time. On the other side By loosing few years if i would like to start a course back in my country i would need to start from the first year. Which would take next 4 years to complete my studies. That period of time, I will consider as losing a lot of time more than ever. And even studying there would not get any credit by having these certificate and diploma level of education in australia.
(d)under the heading “Information about continuous enrolment”, the applicant said that he had been enrolled in a registered course at all times while in Australia and the holder of a student visa.
(e)the applicant said that his parents and sister lived in Nepal, and his brother and sister-in-law lived in Australia. He said that he last saw his father and sister in November 2016, and last saw his mother, brother and sister-in-law in March 2020. The applicant said he used social media, Viber and weekly text messages to communicate with his family in Nepal.
(f)of his community ties with his home country, the applicant said:
Prabath Youth club is the community club created to act for community welfare, including helping community in any Sort of need, social wellbeing, awareness, recreation, sports and many more. Its a social club managed to promote and aid the local residents.
(g)the applicant said nothing about his community ties in Australia, and said he had assets valued at $13,000 in the form of chattels.
(h)of his employment plans, including how they relate to his future, the applicant said:
Till now hoping to get a degree and return back my home country. As of my few years of work experience In hospitality. Hope could manage incase of operating any venues in future. By getting business knowledge I hope it would help somewhat in being better manager, owner or employer in future.
(i)of the remuneration he expected to receive in his home country, the applicant said:
After the completion of my graduation In business i would try to complete my Bachelors degree too. If it works better hope to get enough to make myself better and handle the living expenses. But have no nay idea approximately how much it would be.
(j)the applicant denied any concerns about military service commitments or political or civil unrest in his home country.
On 23 April 2020, the applicant provided various documents to the Tribunal, including a Notification of Cancellation of his enrolment in the Diploma of Information Technology at Kingsford International Institute dated 24 January 2020 on the grounds of unsatisfactory academic progress, and a letter from the applicant to the Tribunal. The letter to the Tribunal is at CB142 to CB144 and I note its contents.
On 9 September 2020, the Tribunal invited the applicant to attend a telephone hearing to give evidence and present arguments in his case (Invitation). The letter stated, inter alia:
You are invited to appear by telephone before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. To help slow the spread of COVID-19 (coronavirus), the AAT has not been holding face to face (in person) hearings since Monday, 23 March 2020 and is currently closed to all visitors until further notice. As we are not holding in-person hearings at the AAT, we are arranging for you to appear by telephone. We will call you at the specified date and time.
The Invitation stated:
Interpreter: Please advise us at least 7 days before the hearing if you require an interpreter.
(Bold in original)
On 15 September 2020, the applicant provided his “Response to hearing invitation”, wherein he said:
(a)he did not require an interpreter;
(b)there was no issue that may affect his ability, or that of any other person participating, to take part in the hearing; and
(c)he did not believe that he would experience difficulty participating in the hearing by telephone or videoconference, or that the hearing could not be conducted by those means.
On 23 September 2020, the applicant appeared before the Tribunal by telephone to give evidence and present arguments in his case. The applicant’s brother also attended and gave evidence.
On 11 December 2020, the Tribunal made its Decision to affirm the Delegate’s Decision not to grant the applicant a student visa on the basis that he did not satisfy the genuine temporary entrant criterion.
The Minister’s submissions conveniently summarise the Tribunal’s findings, which I adopt:
14. The Tribunal identified the issue in the matter as being whether the applicant satisfied paragraph 500.212(a) of Schedule 2 to the Regulations and found it was required to have regard to Direction 69. It found that the factors in Direction 69 should be used to guide decision makers when considering the applicant’s circumstances as a whole, rather than as a checklist (CB 172, [8]-[9]).
15. The applicant’s circumstances in his home country: The Tribunal found that the applicant was “taken in” by his aunt and uncle (the applicant’s parents) at the age of seven, and on the basis of the verification of relationship documents provided accepted that they were considered his parents, and their son his brother. The Tribunal also found the applicant gave evidence that he had a sister who lived in Nepal but was not on his verification of relationship certificate. The Tribunal found that the applicant was close with his parents and that his brother lived in Australia. It found that his family ties would present a significant incentive for him to return to Nepal, but that any community ties he still had had would be too weak to provide any significant incentive to return (CB 174-175, [13]).
16. The Tribunal found the applicant had no assets in Nepal, and that his evidence otherwise related to the financial position of his parents, rather than himself. It found that he had some evidence of employment in Nepal in the information technology field, but that it was unlikely that his record of employment would give him any significant advantage in finding employment there. The Tribunal found that whilst the applicant had no positive economic incentive to avoid returning to Nepal, there was no evidence that he had any economic ties to the country which would provide him with a significant incentive to return there (CB 175, [14]).
17. The Tribunal found it was reasonable for the applicant to seek to study in Australia given his evidence about the availability of management courses in Nepal and that this offered “some support” to the claim that he genuinely intended to stay in Australia temporarily (CB 175, [15]). The Tribunal accepted that there was civil unrest in Nepal, and found that although the applicant was never personally affected or involved this still gave him some reason to avoid returning to Nepal (CB 175, [16]). Accordingly, the Tribunal found that whilst the applicant had a good reason to study in Australia, his only incentive to return to Nepal were his family ties (CB 175, [16]).
18. The applicant’s potential circumstances in Australia: The Tribunal found the applicant’s brother lived in Australia, was an Australian citizen and that the applicant had given evidence his brother was his mentor and guide in life. It found this gave him a strong incentive to remain in Australia (CB 175, [18]). The Tribunal found the applicant was living with his Nepalese girlfriend (who was the holder of a student visa) in Australia and that this gave him a strong incentive to stay which may remain until after the end of his studies. The Tribunal gave “less weight” to this factor as it had no evidence of the applicant’s girlfriend’s likely duration of stay in Australia (CB 176, [19]).
19. The Tribunal found the applicant’s preparations to come to Australia were adequate and that this gave some “relatively slight support” to his claim to be a genuine temporary entrant (CB 176, [20]). It found that the applicant earned between $10,000 and $21,780 per annum in Australia which was significantly more than the equivalent of $1,800 per annum which he earned in Nepal. It found that it was clear the applicant had been able to make considerably more money in Australia, even working part-time and that this gave the applicant some incentive to stay in Australia (CB 176, [21]).
20. The Tribunal concluded that the applicant’s family and personal ties in Australia and his economic circumstances provided strong incentives to stay in Australia after he finished his studies and that these were at least as strong, if not stronger, than his incentives to return home to Nepal. It found that these factors weighed against his claim to intend to stay in Australia temporarily (CB 176, [23]).
21. Value of the proposed course to the applicant’s future: The Tribunal found that the applicant was enrolled at a level which was consistent with his current level of education and that the applicant’s current course would leave him with a qualification at a higher level than any qualification he had earned in his home country. Furthermore, it found that it would improve his employment prospects by opening a field to him that would otherwise be closed or he would be uncompetitive. It found these factors gave “some weight” to the applicant’s claim to be a genuine temporary entrant (CB 177, [24]).
22. The Tribunal found the applicant’s evidence of his future plans was “quite vague” and that it was unclear how his plans to open a hospitality business or work as a chef related to his future ambition to complete an information technology degree (CB 177, [25]). The Tribunal found the applicant gave evidence he could earn approximately AUD$500-$700 per month in Nepal “with qualification” but that it was unclear if that qualification was his current management course or the information technology degree he hoped to complete in future. The Tribunal found it was clear in absolute terms that the applicant could earn more working in Australia and had done so working part-time (CB 177, [26]).
23. The Tribunal concluded that the applicant’s current enrolment had some value for his future but the evidence he had presented was insufficiently detailed or cogent to allow for a “precise determination”. On the whole, the Tribunal found that his evidence did not support his claim to intend genuinely to return to his home country at the end of his studies (CB 177, [27]).
24. The applicant’s immigration history: The Tribunal found that the applicant had been in Australia since 15 September 2014 and had only visited his home country for one month since his arrival (CB 177, [28]). It found that his study history showed that he had completed only two courses in his time in Australia and that he had failed to move beyond the advanced diploma level, despite having come to Australia to study a serious of courses culminating in a bachelor’s degree. It found this record was not one of an applicant who genuinely intended to stay in Australia temporarily for the purpose of study (CB 178-179, [30]).
25. The Tribunal accepted the applicant suffered experiences and emotional states that made studying harder than it might have been otherwise but found that the psychological report provided was insufficiently detailed to assist the Tribunal greatly (CB 179-180, [31]). The Tribunal also accepted the applicant’s brothers’ evidence that the applicant underwent a period of depression, but did not consider that it gave significant further support to the applicant’s case (CB 179, [32]).
26. The Tribunal found that the applicant’s evidence about his difficulties with study failed to adequately address the significant gaps in his study history (of three months, six months and four months respectively). It found that these gaps did not reflect well on his intentions, and that he could have completed approximately two-thirds of his Advanced Diploma of Information Technology Project Management in that time (CB 179-180, [33]).
27. The Tribunal found that although the applicant’s explanation in the previous regression of his study level was not unreasonable, he had not enrolled in a degree level course as he was obliged to by the conditions on his visa (CB 180, [34]). The Tribunal accepted that the applicant’s evidence ameliorated the effect of his study history “to some extent” but concluded that it did not “negate it altogether” and that it detracted from his claim to genuinely intend to stay in Australia temporarily (CB 180, [35], [37]).
28. The Tribunal found it was not satisfied that the applicant genuinely intended to stay in Australia temporarily, and that the applicant did not meet paragraph 500.212(a). Accordingly, the Tribunal affirmed the decision under review (CB 180, [38]-[41]).
Study History
The PRISMS record for the applicant accessed on 17 September 2020 recorded the following study history for the applicant:
Course Commenced Status Certificate IV in Business 27 October 2014 Finished Diploma of Business 10 August 2015 Finished Bachelor of Business 11 July 2016 Cancelled – Student notifies cessation of studies General English (Beginner to Advanced) (4 to 48 weeks) 14 August 2017 Cancelled – Non-commencement of studies General English (Beginner to Advanced) (4 to 36 weeks) 14 August 2017 Finished Bachelor of Information Technology and Systems 13 November 2017 Cancelled – Non-payment of fees Diploma of Information Technology 1 October 2018 Finished Diploma of Information Technology 30 September 2019 Finished Advanced Diploma of Information Technology Project Management 7 October 2019 Cancelled – Non-commencement of studies Advanced Diploma of Information Technology Project Management 13 January 2020 Cancelled – Non-commencement of studies Graduate Diploma of Management (Learning) 4 May 2020 Studying at the time of the Decision Application for Judicial Review
On 29 December 2020, the applicant filed an application for judicial review in this Court alleging two stated Grounds and an affidavit which asserted additional issues. Without demur of the Minister, I have approached the issues raised in paragraphs 4, 5 and 6 of the applicant’s affidavit filed 29 December 2020 as additional grounds of review.
Ground One
Ground One was expressed as follows:
1.The Tribunal erred in law by deciding the matter without giving proper information as required under Sec 359A or 359AA of the Migration Act 1958 and this also violated the procedural fairness in the conduct of the review
Particulars
The Tribunal in paragraph 12 has observed that "The Tribunal has, nonetheless, used the applicant's PRISMS record in order to be more precise about certain dates than the applicant was able to be in his evidence". It is clear that the Tribunal has relied on the information contained in PRISMS in relation the dates which is material information.
The applicant was self-represented before the AAT. The Tribunal has not provided to the applicant full and clear particulars as required by Sec 359A or 359AA so as to what the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The Tribunal never invited the applicant to comment on the information contained in the PRISMS record which was relied by the Tribunal. Further the Tribunal never informed the applicant that he can seek additional time to respond to such information contained in the PRISMS record. This resulted in the commission of jurisdictional error.
The applicant made no submissions in support of Ground One.
The Minister’s legal representative relied on her written submissions which stated:
30. Ground one alleges that alleges that the Tribunal erred by failing to put “information” to the applicant pursuant to section 359A of the Act. In particular, the applicant has identified that the Tribunal (at [12]) indicated that it had used PRISMS records to “be more precise about certain dates” and alleges that this enlivened the Tribunal’s section 359A obligations.
31. This ground is misconceived. Although the Tribunal did rely on PRISMS records to identify the specific date on which the applicant’s courses started and ended, this did not enliven the Tribunal’s procedural fairness obligations because it was not information for the purposes of section 359A. The applicant had previously provided the Tribunal with detailed information about his study history, including the significant gaps between his previous enrolments, both in his subsection 359(2) response and in his oral evidence before the Tribunal. The Tribunal expressly found that there was no need to put the information in the PRISMS records to the applicant pursuant to section 359AA because it “matched and supported the applicant’s oral evidence” and it was used simply to be “more precise” about certain dates (CB 174, [12]). Accordingly, this information did not enliven the Tribunal’s procedural fairness obligations by consequence of 359A(4)(b)—being information that the applicant gave for the purpose of the application for review.
32. Further, and in any event, this information was not information which “in its terms” constituted a rejection, denial or undermining of the applicant’s claim to meet the visa criteria: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. The applicant’s course dates did not in and of themselves refute the applicant’s claim to be a genuine temporary entrant. It was the Tribunal’s subjective appraisal of this evidence, including its concerns in relation to the significant gaps in his enrolment, which ultimately formed part of the basis for the Tribunal’s finding that the applicant was not a genuine temporary entrant.
33. Further, the Tribunal was not required to put its thought processes or subjective appraisals of this evidence to the applicant for comment: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [24] per Finn and Stone JJ.
34. Accordingly, this ground cannot succeed.
I turn to my consideration.
As at December 2020, ss 359AA and 359A of the Act provided:
359AAInformation and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Paragraph 12 of the Decision is as follows:
12. The applicant has also provided written submissions, both to the Department and to the Tribunal. These documents are undated, but the Department file records receipt of one such on 12 September 2018. The Tribunal received a further such document dated 24 December 2018 on that date, and a further undated document under cover of an email dated 23 April 2020. All of the documents listed above, and all of the applicant’s written submissions, have been taken into account in the preparation of these reasons. In addition, prior to hearing the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). There was no need to put any information contained in that record to the applicant in the course of the hearing pursuant to s.359AA of the Act, because it matched and supported the applicant’s oral evidence, and his evidence provided in other documents mentioned above, as to the course of his studies. The Tribunal has, nonetheless, used the applicant’s PRISMS record in order to be more precise about certain dates than the applicant was able to be in his evidence.
The PRISMS record is located at CB159 and summarised at paragraph [27] of these Reasons for convenience.
Paragraphs 30, 31 and 33 of the Decision are as follows:
30. As this history shows, the applicant has completed only two courses in his time in Australia, both within the first 2 years of his arrival. Further, his history shows three significant study gaps, the first between August 2017 and November 2017, the second between April 2018 and mid-September 2018, and the third between December 2019 and April 2020. Finally, his history shows that he has failed to move beyond Advanced Diploma level, despite having come to Australia to study a series of courses culminating in a bachelor’s degree. This record is not, on its face, the record of an applicant who genuinely intends to stay in Australia temporarily for the purpose of study.
31. The applicant addressed these issues in his evidence at hearing. As regards his general failure to progress beyond Advanced Diploma level, or to complete any of his courses since May 2016, he stated that he had suffered depression after his visit to Nepal in November 2016. His evidence was to the effect that on that visit he had approached the family of his long-term girlfriend regarding marriage, and had been rejected on the basis of lack of prospects. This, along with other life issues on which the applicant did not elaborate, caused depression that stopped him from attending effectively to his studies. He provided the Tribunal with a psychological report dated 3 December 2018 as corroboration for that evidence. That report was prepared by an accredited mental health social worker. It recites the applicant’s case history, observes that at the date of his consultation he was manifesting signs of moderate depression, and states (cautiously) that “during the period between 2016 and mid-2018, it is possible that Mr Sapkota met the criteria for the diagnosis of Major Depression at the time, according to the ‘Diagnostic and Statistical Manual of Mental Disorders- 5’ (DSM-5) classification.” It is clear from the applicant’s evidence that he did not seek any professional help for his mental health before his consultation with the author of the psychological report, and the report itself does not make any comment on the applicant’s ability to attend to his studies during the period in question. There is no evidence before the Tribunal suggesting that the applicant made any attempts to alter or defer his enrolment in order to deal with his issues. Whilst the Tribunal accepts that the applicant suffered experiences and emotional states which made studying harder than it might otherwise have been, the psychological report is insufficiently detailed to assist the Tribunal greatly.
[…]
33. As regards the particular study gaps mentioned above, the applicant’s explanation for the first (August 2017 and November 2017) has been given in his written submissions. Those submissions state, in summary, that he ceased studying for his Bachelor of Business Information Systems at Kent Institute because his background had not equipped him to cope with that level of study. The applicant’s written submissions also make mention of his emotional state, as discussed in the preceding paragraph. However, they contain no further explanation for his decision to cease studying for some 3 months or more, and no explanation of his decision to re-enrol in another bachelor’s degree level course. However, the Tribunal notes that at hearing the applicant stated that Kent Institute refunded fees to him after some discussions regarding further enrolment. The applicant’s explanation for his second study gap (from is somewhat difficult to follow. It appears to be that he had difficulty with the course structure at Victorian Institute of Technology, and difficulty communicating with the college administration. This may have been the reason why he ceased studying there, but it does not explain his subsequent 6-month study gap (April 2018 to mid-September 2018). The applicant gave no explanation for his third study gap (December 2019 and April 2020) other than the refusal of his visa application. Whilst the applicant was not positively required by any visa condition to study in this period (as was the case with the earlier gaps), his failure to do so for some 4 months does not reflect well on his intentions. The Tribunal notes that he could have completed approximately two-thirds of his Advanced Diploma of Information Technology Project Management in that time.
The applicant gave a study history in his Request for Information (located at CB133) which is broadly consistent with the PRISMS record, although it omits the General English course in 2017, slightly misnames the Bachelor of Information Technology and Systems (as the “Bachelor of Information and Technology”) and the Bachelor of Business (as the “Bachelors of Business Information System) and “rolls up” the Diploma of Information Technology and Advanced Diploma of Information Technology Project Management into one entry rather than two separate courses.
The applicant addressed his study history prior to the hearing, including the reasons for its gaps, in:
(a)his written statement addressed to the Department (undated) but received by the Department on 12 September 2018 (at CB22 to CB24);
(b)his written statement addressed to the Department (undated) and responding to its request to provide further information about his employment and educational history (including dates), a statement to explain a gap in his study, and academic transcripts (at CB51 and CB72 to CB73);
(c)his written submissions addressed to the Tribunal dated 24 December 2018 (at CB100 to CB106, especially CB101 to CB102);
(d)the psychologist’s report dated 3 December 2018, especially at CB109-CB110 under the heading “Mental Health – Since coming to Australia”, and at CB11-112 in the “Assessment and Recommendations”; and
(e)a written submission provided to the Tribunal under cover of email dated 23 April 2020 (at CB142ff).
The Decision records that the applicant gave oral evidence about his study history including the gaps in his study and failure to move beyond vocational level study despite having come to Australia to study courses culminating in a bachelor’s degree.
Given the PRISMS record was used for the purpose of being “more precise” about the dates of courses of study, and the content of the record was consistent with the applicant’s oral evidence, written submissions to the Department and the Tribunal, I accept that the Tribunal was not required to provide the applicant with a copy of it.
Notwithstanding the applicant was self-represented before the Tribunal, it is untenable for him to assert that the Tribunal did not provide him with particulars about what the Tribunal considered would be the reason, or a part of the reason, for affirming the Delegate’s Decision so far as his study history was concerned. The applicant addressed the issue of his study history and reason for gaps in his study in his written submissions between September 2018 and April 2020 and obtained a psychologist’s report which also addressed that issue. In other words, the applicant was obviously aware of the issue.
I accept the Minister’s submission that the information in the PRISMS record was not information that “in its terms” constituted a rejection, denial or undermining of the applicant’s claim to meet the visa criteria: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. Paragraphs 30 to 35 of the Decision demonstrate that the Tribunal considered the study history in the context of evaluating whether the applicant’s conduct in this regard was consistent with a person who was a genuine temporary entrant. That evaluation included an appraisal of the study gaps and explanations for these, and the applicant’s failure to advance beyond vocational level study.
I do not accept the applicant’s contention that the Tribunal did not invite him to comment on the information contained in the PRISMS record. Paragraphs 31 to 34 of the Decision record that the applicant gave evidence about his study history including the study gaps and academic regression. In any event, the Tribunal is not required to put its thought processes and subjective appraisal to the applicant for comment: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ.
There is no evidence that the applicant sought additional time to respond to the Tribunal’s questions about his study history. The applicant submitted his Request for Information and additional documents to the Tribunal within the time specified in the 9 April 2020 letter and declined the offer to rely on additional documents when asked in the Response to hearing invitation dated 15 September 2020. There is no evidence that the applicant sought to rely on further written material during the Tribunal hearing nor to submit such material after the hearing. There is no evidence that would otherwise lead me to find that insufficient time or opportunity was afforded to the applicant or the applicant’s brother to give their oral evidence, or for the applicant to present his arguments at the hearing.
Ground One fails.
Ground Two
Ground Two was expressed as follows:
2.The Tribunal erred in law by failing to give the matter "proper, genuine and realistic consideration" and to the evidence adduced by the applicant.
Particulars
[Illogicality] In paragraph 16 the Tribunal observes that "The applicant was asked whether he had any concerns regarding civil or political unrest in Nepal. His response was to the effect […] the applicant himself has never been involved and that as a result , although he would be affected in some ways by the situation , all citizens of Nepal would be affected in the same way . The Tribunal accepts this evidence but finds that even so, the situation still gives the applicant some reason to avoid returning to Nepal". The Tribunal having found that the evidence as true and affects all Nepal citizens in the same way, came to the conclusion that it gives some reason to avoid returning to Nepal. This implies all Nepal citizens have some reason to avoid returning to Nepal, which is illogical. [Failure to consider] It is submitted that the Tribunal has failed to give ' proper, genuine and realistic consideration'; that is, the decision-maker failed to engage in an ' active intellectual process' as determined in Casascalao v Minister for Immigration andBorder Protection [2017] FCAFC 107; (2017) 252 FCR 352 at (45], per Griffiths, White and Bromwich JJ.
[Procedural fairness] Further the applicant was self-represented before the AAT. During the course of interview there were several instances the applicant was misunderstood by the Tribunal due to language barrier of the applicant as he is of a non-English speaking background It is submitted that the Tribunal should have stopped the hearing and appointed a translator so that evidence can be properly adduced and appreciated by the Tribunal. This resulted in miscarriage of justice
(Square bracketed description added for convenience of reference).
It is convenient to break down the elements of Ground Two.
Illogicality
Despite the terms of Ground Two being that of “failure to consider”, the first aspect of the particulars asserts that the Tribunal’s finding about his concerns regarding civil or political unrest in Nepal was illogical.
Paragraph 16 of the Decision is as follows:
16.The applicant gave evidence at hearing that he had no military service obligations to fulfill when he returns to Nepal. There is no evidence before ethe Tribunal to the contrary and the Tribunal accepts that this is the case. The applicant was asked whether he had any concerns regarding civil or political unrest in Nepal. His response was to the effect that although Nepal has suffered from considerable political and civil unrest in recent years, the applicant himself has never been involved and that as a result, although he would be affected in some ways by the situation, all citizens of Nepal would be affected in the same way. The Tribunal accepts this evidence but finds that, even so, the situation still gives the applicant some reason to avoid returning to Nepal.
The applicant submits that the finding at paragraph 16 illogically implies that all Nepalese citizens have some reason to avoid returning to Nepal. He said that his brother is in Australia though also a citizen of Nepal and has not returned to Nepal. The applicant said that “as his brother with citizenship, I will not return to Nepal”.
The Minister’s written submissions at paragraphs 35 and 36 are as follows:
35. Ground two alleges that the Tribunal failed to give “proper, genuine and realistic consideration” to the applicant’s evidence that all citizens in Nepal would be affected in the same way by the civil unrest. The particulars to the ground take issue with the Tribunal’s finding at [16] concerning civil or political unrest in Nepal. The Tribunal found (CB 175, [16]):
“…The applicant was asked whether he had any concerns regarding civil or political unrest in Nepal. His response was to the effect that although Nepal has suffered from considerable political and civil unrest in recent years, the applicant himself has never been involved and that as a result, although he would be affected in some ways by the situation, all citizens of Nepal would be affected in the same way. The Tribunal accepts this evidence but finds that, even so, the situation still gives the applicant some reason to avoid returning to Nepal.”
36. The Tribunal’s decision record demonstrates that the Tribunal considered the applicant’s claim that he has never been involved in any civil or political unrest. However, the Tribunal found that the fact that it could affect all citizens in some way would give the applicant some reason to avoid returning to Nepal. was logical for the Tribunal to find that civil unrest in Nepal may present a reason for the applicant not to return. The Tribunal’s finding was open on the material before it.
In her oral submissions relating to paragraph 16 of the Decision, the Minister’s legal representative said the Tribunal’s finding was not illogical because it was made in the context of the applicant’s circumstances in Nepal, as required by the Direction. The applicant informed the Tribunal that he had no concerns regarding civil or political unrest and that all citizens in Nepal are affected the same way. The Tribunal accepted the applicant’s evidence but the overall situation in Nepal still gave the applicant some reason to avoid returning home.
I turn to my consideration of this issue. The applicant represented to the Tribunal in his Request for Information that he had no concerns about civil or political unrest in Nepal. Paragraph 16 of the Decision demonstrates that the applicant’s oral evidence qualified that representation, namely that there had been considerable unrest in recent years and, although he had never been involved in it, and all people in Nepal would be affected in the same way. In other words, the evidence was to the effect that there was a level of civil or political unrest in Nepal which, although not necessarily disruptive to the applicant, nevertheless exists in the background to life in that country.
The Minister’s submissions correctly identify that the Tribunal was not required to uncritically accept the applicant’s claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. However, in this case, the claim, as expressed in the Request for Information, was qualified by the applicant’s oral evidence about the effect of civil or political unrest on the people of Nepal, albeit not involving him directly.
The Tribunal’s consideration of the civil and political situation in Nepal engaged with clause 9(e) of the Direction. Clause 10 of the Direction allowed the Tribunal to have regard to the applicant’s circumstances in Nepal relative to the circumstances of others in that country.
There is nothing illogical about the Tribunal’s finding that the civil and political situation in Nepal gave the applicant some reason to avoid returning to Nepal. The applicant raised the impact of the civil and political situation in Nepal in terms that were relative to others living there. His evidence directly engaged clause 10 of the Direction and the Tribunal was, in any event, permitted to consider the issue of the civil and political situation both as a direct impact on the applicant (per clause 9(e)) and how such impact may be considered contextually to others in that country (per clause 10).
The finding at paragraph 16 does not imply (illogically or otherwise) that all Nepalese citizens have a reason to avoid returning to Nepal. Rather, the Tribunal concluded that the civil or political unrest in that country, affecting all people there, was somewhat of a disincentive for the applicant to return. Whether other Nepal citizens would also have a reason to avoid returning was not the issue and no finding was made about it.
This element of Ground Two fails.
Failure to Consider
The applicant contends that the Tribunal failed to consider the evidence and failed to engage in an “active intellectual process” per Carrascalao v Minister for Immigration andBorder Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
The applicant made no submissions about this element of Ground Two.
The Minister’s legal representative submitted that it is clear from a plain reading of the Decision that the Tribunal comprehensively considered the applicant’s claims. She emphasised that it cannot be said that the Tribunal did not actively engage in the process as required, especially noting the Tribunal’s consideration of factors in the Direction.
I turn to my consideration of this issue. As to whether the Tribunal considered the report, it is well established that “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant statutory criteria: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at [11] per Gummow J. In Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304 at [24] to [27], the High Court said:
[24]Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
[25]It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26]Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Peko-Wallsend, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
[27]None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
I am satisfied that the Tribunal brought its mind to bear on the evidence adduced by the applicant both in writing and in his oral evidence and submissions at the hearing. Paragraphs 10 to 12 of the Decision identified the evidence that was before the Tribunal. Thereafter:
(a)Paragraphs 13 to 17 traverse the applicant’s circumstances in Nepal, and in so doing, demonstrate that the Tribunal engaged with clause 9 and 10 of the Direction and the evidence pertaining to those factors;
(b)Paragraphs 18 to 27 traverse the applicant’s potential circumstances in Australia, and in so doing, demonstrate that the Tribunal engaged with clause 11 of the Direction and the evidence pertaining to that factor;
(c)Paragraph 28 traverses the applicant’s immigration history, thus engaging clauses 13 and 14 of the Direction. The dates of the applicant’s entry into Australia, visa history and travel to Nepal were not controversial; and
(d)Paragraphs 29 to 35 addressed the applicant’s study history including study gaps and academic regression. This engaged with clauses 11(b), 11(c) and 12(a) of the Direction and the evidence pertaining to those factors.
Absent any submission to assist me to understand in what way it is said that the Tribunal failed to consider a claim, and having regard to the matters which were traversed in the Decision and their relationship to the factors in the Direction, this element of Ground Two fails.
Procedural Fairness
The applicant contends that during the hearing, there were several instances when he was misunderstood by the Tribunal due to language barrier and that the Tribunal should have stopped the hearing and appointed a translator so that evidence could be properly adduced and appreciated by the Tribunal.
In his oral submissions, the applicant said that the hearing was by telephone from Western Australia, and he did not understand anything.
When taken to the invitation to attend the hearing (at CB147ff), in which the Tribunal stated that the hearing would be by telephone, and the Response to hearing invitation signed on 15 September 2020 (at CB156), wherein he did not ask for an interpreter, the applicant said that when he completed the form, he thought the hearing would be in Sydney and in person.
The applicant said that when he first applied to the Tribunal, it was before the COVID-19 pandemic and his then-lawyer told him he would not need an interpreter, that he would understand what was happening during the hearing and would not need to talk much.
The applicant also said that the call from Western Australia was not clear resulting in miscommunication.
The Minister’s written submissions at paragraphs 39 to 40 are:
39. Presumably, the applicant’s reference to “the interview” intends to refer to the Tribunal hearing held on 23 September 2020. In response to Question 4 of the Application for Review lodged on 24 December 2018 and Part 2 to the Response to hearing invitation form provided by the applicant on 15 September 2020, the applicant answered “No” to the question of whether he required an interpreter for communicating with the Tribunal, including at the hearing (CB 90 and CB 156)
40. The applicant does not point to any specific miscommunication or misunderstanding by either himself or the Tribunal during the hearing, nor has he filed any evidence to support such a contention. As there is no evidence that the quality of the Tribunal hearing was compromised such that the applicant was denied a meaningful hearing as contemplated by subsection 360(1) of the Act and there is no indication that the applicant made any complaint during the hearing that he was having difficulty understanding the Tribunal, there is no apparent basis on which the Tribunal should have stopped the hearing.
In her oral submissions, the Minster’s legal representative said that it was open to the Tribunal to conduct the hearing by telephone. There is no evidence to corroborate the claim that there were communication difficulties by reason of the telephone.
I turn to my consideration of this issue. It is a matter for the Tribunal as to how it conducts its hearings. Section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) provides:
33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
The invitation to attend the hearing dated 9 September 2020 identified that the hearing would be conducted by telephone. The invitation asked the applicant to advise the Tribunal at least seven days before the hearing if he required an interpreter.
The Response to hearing invitation signed by the applicant on 15 September 2020 denied the need for an interpreter, denied any issue that may affect his ability to participate in the hearing, and denied any belief that he would experience difficulty participating in a telephone hearing nor that the hearing could not be conducted by telephone.
Whatever belief the applicant may have had about the location and format of the hearing when he lodged his application in the Tribunal in December 2018. By the Invitation dated 9 September 2020, the applicant was informed that the matter would be conducted by telephone.
There is no evidence that the telephone connection was disrupted or unclear. The applicant could have adduced evidence in the form of a transcript, audio recording of the hearing, or affidavit evidence about difficulties in the exchange. On the contrary, the Decision records the oral evidence without any reference to a difficulty in transmission. Moreover, the applicant has not taken me to any part of the Decision which demonstrates that the Tribunal misconceived the evidence from which it may be inferred there was a breakdown in the quality of telecommunications. Nor has the applicant adduced any evidence that he raised the quality of the telephone connection with the Tribunal such as to prompt the Tribunal to adjourn the hearing so that such issue could be resolved or otherwise modify its process to manage the issue.
This aspect of Ground Two fails.
For the reasons given, the totality of Ground Two fails.
Affidavit Paragraph Four
Paragraph four of the applicant’s affidavit contends:
4. The Tribunal failed to consider all the evidence I produced before it.
In his oral submissions, the applicant clarified that the evidence in question was the psychological report at CB107.
Paragraph 31 of the Decision reads:
31. The applicant addressed these issues in his evidence at hearing. As regards his general failure to progress beyond Advanced Diploma level, or to complete any of his courses since May 2016, he stated that he had suffered depression after his visit to Nepal in November 2016. His evidence was to the effect that on that visit he had approached the family of his long-term girlfriend regarding marriage, and had been rejected on the basis of lack of prospects. This, along with other life issues on which the applicant did not elaborate, caused depression that stopped him from attending effectively to his studies. He provided the Tribunal with a psychological report dated 3 December 2018 as corroboration for that evidence. That report was prepared by an accredited mental health social worker. It recites the applicant’s case history, observes that at the date of his consultation he was manifesting signs of moderate depression, and states (cautiously) that “during the period between 2016 and mid-2018, it is possible that Mr Sapkota met the criteria for the diagnosis of Major Depression at the time, according to the ‘Diagnostic and Statistical Manual of Mental Disorders- 5’ (DSM-5) classification.” It is clear from the applicant’s evidence that he did not seek any professional help for his mental health before his consultation with the author of the psychological report, and the report itself does not make any comment on the applicant’s ability to attend to his studies during the period in question. There is no evidence before the Tribunal suggesting that the applicant made any attempts to alter or defer his enrolment in order to deal with his issues. Whilst the Tribunal accepts that the applicant suffered experiences and emotional states which made studying harder than it might otherwise have been, the psychological report is insufficiently detailed to assist the Tribunal greatly.
When asked how the contention made at paragraph four of the affidavit sat with the Tribunal’s discussion of the report at paragraph 31 of its Decision, the applicant submitted that the Tribunal said that the psychological evidence was insufficient. The applicant also referred to paragraphs 13 and 21 of the Decision. Doing the best I can to understand his submission, he said that part of the reason the application was rejected was based on paragraphs 13 and 21 of the Decision.
Paragraph 13 of the Decision relates to the applicant’s circumstances in his home country, with the Tribunal finding that:
…such community ties as he still has after some 6 years living in Australia are too weak to provide any significant incentive to return.
Paragraph 21 of the Decision relates to the applicant’s economic circumstances, finding that:
Even allowing for differences in purchasing power and living expenses, it is clear that the applicant has been able to make considerably more money in Australia, even working part-time. The Tribunal finds that this gives the applicant some incentive to stay in Australia.
The Minister’s written submissions were to the effect that the applicant failed to identify or provide any detail about the evidence that was not considered, nor is any such failure apparent. In her oral submissions, the Minister’s legal representative said that the Tribunal comprehensively considered the report as demonstrated by paragraph 31 of the Decision.
I turn to my consideration of this issue. I refer to paragraph 61 of these Reasons wherein I have addressed the authorities about the meaning of “consider”.
I am satisfied that the Tribunal brought its mind to bear on the evidence given by the applicant about his psychological state, sifted such evidence and attributed such weight or persuasive quality as it thought appropriate. This is demonstrated by the summary of such evidence in paragraph 31 of the Decision, as to make it clear that the Tribunal was aware of the claims made and analysed. For example, the Tribunal drew a connection between the recommendation in the report for ongoing engagement with psychological support and the absence of any evidence that the applicant implemented such recommendation.
The Tribunal accepted that the applicant suffered experiences and emotional states that made studying harder than it might otherwise have been, but that the report “was insufficiently detailed to assist the Tribunal greatly.” This later statement is an expression of the weight that the Tribunal applied to the evidence. The weight that was given to such evidence was a matter for the Tribunal: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ.
The applicant’s submission about paragraphs 13 and 21 of the Decision were vague. That said, I cannot locate any error relating to them. The subject matter of those paragraphs engaged with clauses 9(b) and (c) and 11(a) of the Direction. The findings in those paragraphs were open on the evidence, including the applicant’s answers in the Request for Information, relationship verification documents and the applicant’s oral evidence.
Such factors were included in the overall balance of matters for consideration, as demonstrated by paragraphs 13 to 37 of the Decision, when reaching the ultimate finding that the applicant did not satisfy the genuine temporary entrant criterion.
The contention at paragraph four of the applicant’s affidavit, constituted as a ground of review, fails.
Affidavit Paragraph Five
Paragraph Five of the applicant’s affidavit contends:
5.The Tribunal failed to [provide] me with adequate opportunity to furnish further evidence and present my case.
The applicant submitted that he did not have a proper opportunity to clearly communicate during the hearing over the telephone link due to breaks in the line. The applicant submitted that he felt that he did not understand what was being said by the Tribunal member and was very nervous.
The Minister’s written submissions at paragraphs 43 and 44 are:
43.…There is no evidence the applicant sought additional time to provide further documents following the hearing and, in any event, almost three months elapsed between the date of the hearing and the Tribunal’s decision—which provided the applicant with ample time to provide any additional documents or submissions.
44. The applicant has otherwise failed to identify how he was not provided with an adequate opportunity to provide evidence to the Tribunal in circumstances where he attended a hearing and provided numerous submissions to the Tribunal. There is no indication that the applicant sought additional time to provide further documents, and in the absence of such evidence this contention cannot succeed.
I turn to my consideration of this issue. This issue reiterates the “procedural fairness” aspect of Ground Two. For the reasons set out in paragraphs 64 to 76 of these Reasons, the contention at paragraph five of the applicant’s affidavit, constituted as a ground of review, fails.
Affidavit Paragraph Six
Paragraph six of the applicant’s affidavit contends:
6.The Tribunal failed to adjourn the case in spite of me providing a medical certificate to that effect.
The applicant submitted that the “medical certificate” was the psychological report dated 3 December 2018, located at CB107.
The Minister’s legal representative submitted at paragraph 45 of her written submissions:
45. In relation to (c), there is also no evidence that the applicant provided the Tribunal with a medical certificate and sought an adjournment of the case or hearing. Accordingly, this final contention must fail on the facts. Although there is a psychologist’s report on the Tribunal file (dated 3 December 2018), there is no indication in this report that the applicant was unfit to attend a hearing or required an adjournment of his case. In fact, the report indicated that the applicant was recovering from his depressive episode and his mental health had improved. There is also no suggestion that the psychologist report was ever relied upon by the applicant to support any adjournment request.
I turn to my consideration of this issue. The applicant denied any impediment to participating in the hearing in his Request for hearing invitation dated 15 September 2020. There is no evidence that an application for an adjournment was made after the return of the Request for Hearing Invitation, including at the commencement of, or during, the hearing itself.
There is no evidence that the applicant could not participate in the hearing. The report recommended that the applicant be permitted to continue his studies and engage in ongoing psychological support. While the report appears to have been prepared for the purpose of use in the Tribunal process (noting the proximity of its date and lodgement of the application to the Tribunal and its subject matter), it does not address the applicant’s capacity to engage in that process.
The contention at paragraph six of the applicant’s affidavit, constituted as a ground of review, fails.
FINAL DISPOSITION
For the reasons given, no jurisdictional error has been demonstrated. The application filed on 29 December 2020 must be dismissed.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 23 September 2025
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