Shrestha v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 459
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shrestha v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 459
File number(s):
CAG 58 of 2021
Judgment of:
JUDGE LEISHMAN
Date of judgment:
10 April 2025
Catchwords:
MIGRATION – Student (Temporary) (Class TU) (subclass 500) visas refused – Administrative Appeals Tribunal affirmed delegate’s decision – Judicial review of Tribunal’s decision – Whether Tribunal failed to consider evidence – Whether the Tribunal provided adequate reasons for its decision-whether the Applicants were afforded procedural fairness – No jurisdictional error established – Application dismissed
Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Migration Act 1958 (Cth) Pt 5 and Pt 7AA, ss 65, 357A, 359A, 360, 363(1), 474, 476, 499
Federal Circuit and Family Court of Australia(Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2, Div 1
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 513
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Sun v Minister for Immigration and Border Protection (2017) 157 ALD 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
WZARX v Minister for Immigration and Border Protection [2014] FCA 423
AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30
SZOBN and Another v Minister for Immigration and Citizenship (2010) 119 ALD 260
Division:
Division 2 General Federal Law
Number of paragraphs:
110
Date of hearing:
28 March 2025
Place:
Canberra
Solicitor for the First and Second Applicants:
Self-represented litigants, in-person, with the assistance of a Nepalese interpreter
Solicitor for the First Respondent:
Ms Ho of Clayton Utz
Solicitor for the Second Respondent:
Submitting appearance
ORDERS
CAG 58 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURU PRASAD SHRESTHA
First Applicant
PRATIMA SHRESTHA
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LEISHMAN
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.The application filed on 21 December 2021 is dismissed.
2.The Applicant pay the First Respondent’s costs in the amount of $7,853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LEISHMAN
INTRODUCTION
On 21 December 2021, the Applicants filed an Application for Judicial Review of the Administrative Appeals Tribunal (‘the Tribunal’), as it then was, made on 8 December 2021.
By that decision, the Tribunal affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Delegate’), as the Minister was then called, to refuse to grant the Applicants’ Student (Temporary) (Class TU) Student (subclass 500) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
PROCEURAL BACKGROUND
The Second Applicant is the spouse of the First Applicant, hereafter referred to as ‘the Applicants’. The Applicants have an adult daughter who is a permanent resident of Australia.
The Applicants are citizens of Nepal. On 14 July 2014, the First Applicant arrived on a Higher Education Sector visa (subclass 573) TU-573P640 visa.
On 17 February 2017, the First Applicant was granted a Student (Temporary) (Class TU) visa.
On 30 August 2017, the First Applicant was granted a new Student (Temporary) (Class TU) visa.
On 13 November 2017, the First Applicant was granted a Subclass 485 Temporary Graduate visa with an expiration date of 13 November 2019.
On 28 October 2019, the Applicants applied, with the assistance of their migration agent, for the visas which are the subject of this judicial review application, being Student (Temporary) (Class TU) (subclass 500) visas (‘the visas’).
On 17 February 2020, the Delegate refused to grant the Applicants’ visas on the basis that the Delegate was not satisfied that the First Applicant satisfied the genuine temporary entrant criterion in Sch 2, cl 500.212 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
On 2 March 2020, the Applicants applied to the Tribunal for review of the Delegate’s decision.
On 18 June 2021, the First Applicant appeared at the hearing before the Tribunal by telephone to give evidence and present arguments. He was assisted by an interpreter.
On 1 December 2021, the Tribunal invited the Applicants to comment on or respond to information it had, being that the First Applicant was not enrolled in a course of study in Australia.
On 7 December 2021, the Applicants provided their response and provided further evidence.
On 10 December 2021, the Tribunal notified the Applicants of its decision to affirm the Delegate’s decision not to grant the Applicants the visas.
THE TRIBUNAL’S DECISION
The Tribunal’s decision was contained in the Court Book (‘CB’) at (CB230-247).
The Tribunal correctly identified at [18] and [19] of its decision that the issue to be determined was whether the First Applicant met the requirements of cl 500.212 of Sch 2 of the Regulations, which required that the Applicant is a genuine temporary applicant for entry and stay in Australia as a student.
The Tribunal noted that other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
Clause 500.212 is as follows:
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.
At [20] of its decision, the Tribunal correctly stated that in considering whether the Applicant satisfies the genuine temporary entrant criterion in cl 500.212, it is to have regard to Direction Number 69 under s 499 of the Act (‘Direction No. 69’).
Direction No. 69 applies to delegates of the Minister and members of the Tribunal who review decisions in relation to a Student visa or Student Guardian visa application. Thus, the Tribunal was required to consider a number of factors including the Applicant’s circumstances in their home country, circumstances in Australia, the value of the course to the Applicant’s future, the Applicant’s immigration history, and any other relevant matter.
The factors are not a checklist but rather a guide for decision-makers in considering the Applicant’s circumstances as a whole and reaching a finding as to whether the Applicant satisfies the genuine temporary entrant criterion.
The Tribunal listed at [5] of its decision the evidence it took into account in reaching its decision (CB234-235). This included the following:
(a)Department of Home Affairs (‘the Department’) notification and decision dated 17 February 2020;
(b)Applicants’ marriage certificate;
(c)Applicant’s statements of purpose;
(d)PTE English test results;
(e)Employment references from Nepal;
(f)Passport information for the Applicant and Secondary Applicant;
(g)Property valuation certificate for assets in Nepal;
(h)Overseas Student Health Certificate;
(i)CBA bank statement in the name of the Applicant dated 28 February 2020;
(j)COEs for a Master of Business Administration (MBA) and Master of Professional Accounting (MPA);
(k)Holmes Institute interim transcript for an MBA;
(l)Evidence of Applicant’s education in Nepal;
(m)University of Canberra Master of International Development certificate awarded 27 September 2017;
(n)Passport information for the Applicant’s adult children;
(o)Photos of a wedding (Applicant later advised the folder containing the images was sent in error);
(p)Holmes Institute letters dated 20 March 2020 confirming of study of MBA and MPA;
(q)Holmes Institute academic transcript for an MBA and MPA;
(r)Updated COE for an MPA;
(s)Statement in response to invitation to comment on adverse information dated 7 December 2021;
(t)Offer letter and COE from Opulence College for a Diploma of Leadership and Management;
(u)Updated Overseas Student Health Certificate; and
(v)Holmes Institute letter of completion for an MBA and MPA dated 30 July 2021.
The Tribunal also considered the evidence provided to the Delegate at the time of application in deciding the Applicants’ case.
The Tribunal also received oral evidence and argument from the First Applicant in support of the Application at the hearing on 18 June 2021.
The First Applicant’s oral evidence included the following:
(a)The First Applicant came to Australia in 2014 to study a Master of International Development which he had completed;
(b)The First Applicant was enrolled in an MBA and had one subject left;
(c)When asked for clarification by the Tribunal, the First Applicant said the MBA is combined with an MPA consisting of 16 subjects in total;
(d)The First Applicant had completed a Bachelor of Commerce in Nepal and was working before he came to Australia;
(e)The First Applicant came to Australia to study due to the many international students coming back to Nepal which created competition. He wanted to obtain an international degree so he can go back to Nepal;
(f)The First Applicant was earning good money so it was not hard for him to pay the fees and he was focussed on obtaining an international degree;
(g)The First Applicant said he will use his MBA and MPA qualifications to get a good job. He will apply to be an auditor, accountant or business administrator;
(h)The First Applicant wants to return to Nepal as soon as possible but the circumstances are very difficult;
(i)After applying for a visa, it was granted but he did not get a job related to the Master of International Development, so he enrolled for the MBA/MPA;
(j)The First Applicant said he applied for a Subclass 485 visa to get full working rights in Australia, but it did not happen;
(k)The First Applicant had subjects still to complete which is why he had applied for a further Student visa, but it was refused;
(l)The First Applicant said he had enrolled in a second Masters degree as the first degree had some subjects missing and he will go back to Nepal and open an accounting firm when he finishes studying;
(m)The First Applicant said he planned to finish his studies and go back to Nepal; and
(n)The First Applicant confirmed his course of study would be completed on 15 July 2021, as he had only one subject left.
On 1 December 2021, the Tribunal wrote to the First Applicant in accordance with s 359A of the Act inviting him to comment on or respond to information (CB205-206). The particulars of the information put to him were:
According to the Provider Registration and International Student Management System (PRISMS) records available to the Tribunal, you are not currently enrolled in a course of study in Australia.
The First Applicant was advised that the information was relevant to the review because the Regulations state that at the time of decision, to be eligible for the grant of a Student visa, an applicant must be enrolled in a full-time registered course of study. He was also advised that if the Tribunal relies on the information indicating he is not enrolled to study in making a decision, it may lead to the decision under review being affirmed.
The First Applicant was invited to give comments on or respond to the above information in writing by 15 December 2021.
The First Applicant responded to the invitation on 7 December 2021 and provided evidence of a new enrolment in a Diploma of Leadership and Management.
In assessing whether the First Applicant met the genuine temporary entrant criterion in cl 500.212, the Tribunal considered the First Applicant’s evidence against the factors in Direction No. 69.
At [22] of its decision the Tribunal considered the First Applicant’s circumstances in his home country. It noted that the First Applicant had completed his education in Nepal and was employed as a Senior Officer with BSP-Nepal, a rural and renewable energy non-government organisation from 2003 to 2014 prior to travelling to Australia.
The Tribunal noted that the Applicants’ son resides in Nepal where he is a student and is also taking care of family property and that there are also extended family members who continue to reside In Nepal. The Tribunal referred to the First Applicant’s submissions that he maintains greater ties to his home country than Australia, and wants to be an asset to his country, and that he and his wife had responsibilities to their families there and planned to return.
The Tribunal accepted that the First Applicant had ongoing personal ties to Nepal and that he has some property and assets. However, based on the amount of time the First Applicant had spent in Australia and the ties he had through the presence of his wife and daughter, and through work and study, the Tribunal was not satisfied the First Applicant had a strong incentive to return to Nepal.
The Tribunal found that this was reinforced by the First Applicant enrolling in further study after completing a second combined Masters degree despite claiming he is keen to return to his home country.
At [23] of its decision, the Tribunal noted that the First Applicant’s Masters course was due to be completed less than a month after the hearing. It also noted that the First Applicant has worked in hospitality and was employed in aged care at the time of the hearing. The Tribunal found that given the First Respondent’s wife and daughter, who is a resident, both being in Australia and his ongoing employment, he has incentives to seek to remain in Australia. In support of this finding, the Tribunal noted that the First Applicant’s son was taking care of family property in Nepal, which meant that the First Applicant’s material responsibilities were being managed for him.
At [24] of its decision, the Tribunal noted that to be eligible for a Student visa the Applicant must be enrolled in a course of study at the time of decision.
On 1 December 2021, the Tribunal invited the First Applicant to comment on why he was no longer enrolled in a course of study. The Tribunal noted that in his statement submitted on 7 December 2021, the First Applicant expressed that he was hoping for a decision in his case while he was still studying at the Holmes Institute (completing his MPA) and since it was not received before he finished his Masters course, he decided to wait before enrolling in another course. The First Applicant’s reasons for wanting to pursue his education further was that COVID-19 had adversely affected Nepal and conditions were not favourable for entrepreneurial undertakings.
While the Tribunal accepted that the First Applicant was now enrolled at the time of its decision, it was not satisfied that the First Applicant had enrolled in the Diploma course for genuine purposes.
Regarding the value of the course to the First Applicant’s future, at [27] the Tribunal stated that it was not clear why the First Applicant made the decision to continue studying when he had previously stressed the value of the MBA/MPA and that he had not provided a satisfactory explanation of the value of a lower-level Diploma course in Leadership and Management. It also noted that it was open to the First Applicant to withdraw his application for review and return to Nepal after he finished his MBA/MPA course in July 2021.
At [28] of its decision the Tribunal expressed the view that it was unconvincing that at the First Applicant’s age and stage of life, it was reasonable to undertake further Masters level studies by completing a combined MBA/MPA. It therefore found that a Diploma in Leadership and Management was also not reasonable.
The Tribunal went on to note that the First Applicant is now working in an unrelated field in aged care and has been away from the full-time workforce in Nepal since 2014. The Tribunal therefore concluded that it was unable to place weight in the First Applicant’s favour on the value of his current course of study.
At [29] of its decision, the Tribunal considered the First Applicant’s immigration history. It had regard to the First Applicant’s visa and travel history and noted that the First Applicant arrived in Australia on 23 July 2014 as the holder of a Student visa (subclass 573) granted on 14 July 2014. The First Applicant was granted Student visas (subclass 500) on 17 February 2017 and 30 August 2017, and on 13 November 2017 he was granted a Subclass 485 Temporary Graduate visa that was valid until 13 November 2019.
The Tribunal also noted that the First Applicant had only returned to Nepal once from 25 February 2019 to 13 March 2019 and that his current course of study ends on 13 November 2022.
Based on the length of time the First Applicant has spent onshore since his arrival in Australia, the Tribunal concluded it was not satisfied the First Applicant genuinely intends to return to Nepal after completing his studies in Australia and found that the First Applicant was using the Student visa program to maintain residency in Australia.
The Tribunal was accordingly not satisfied that the First Applicant intends genuinely to stay in Australia temporarily and was not satisfied that the First Applicant was a genuine applicant for entry and stay as a student, as required by cl 500.212.
The Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa were not met and affirmed the Delegate’s decision.
At [33] and [34] of its decision, the Tribunal then went on to consider the visa application by First Applicant’s wife who was a secondary visa applicant. Other members of a family unit only need to satisfy the secondary criteria.
As the Tribunal was not satisfied the First Applicant satisfied the primary criteria the Secondary Applicant was unable to meet the criteria because she was not a member of a family unit of a person who satisfies the primary criteria in cl 500.212.
Accordingly, at [35] the Tribunal affirmed the decisions not to grant to the Applicants Student (Temporary) (Class TU) Student (subclass 500) visas.
CURRENT PROCEEDINGS
The proceedings in this Court were commenced by application filed 21 December 2021, pursuant to s 476 of the Act. On the same date, the Applicants filed an affidavit annexing the Tribunal’s decision.
On 18 March 2022, procedural orders were made permitting the Applicants to file any submissions, amended application and additional evidence upon which they sought to rely 14 days prior to the hearing.
The filing timetable was confirmed by Orders made on 17 December 2024, and it was noted that the First Applicant retained a copy of the Court Book.
On 11 March 2025, the Applicants filed submissions but no amended application or further evidence, although a statutory declaration from the Applicants’ daughter was annexed to the submissions.
The proceedings were listed for final hearing on 28 March 2025. An interpreter was present and interpreted for the Applicant via video link at the hearing.
Material relied upon
At the final hearing, the material set out below was before the Court.
The Applicants relied upon the following material:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The application for judicial review filed on 21 December 2021;
(c)The affidavit of the First Applicant filed on 21 December 2021; and
(d)The outline of submissions filed on 11 March 2025.
The First Respondent relied upon the following material:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The submitting notice filed on 11 January 2022;
(c)The response filed on 11 January 2022;
(d)The affidavit of service filed on 21 February 2025; and
(e)The outline of submissions filed on 13 March 2025.
The Applicants were also given the opportunity to make oral submissions in support of their application and in reply to the submissions made by the First Respondent.
I have had regard to the material relied upon by both parties in determining this matter and the further oral submissions made at the hearing.
REQUIREMENT FOR JURISDICTIONAL ERROR
The Court may set aside the Tribunal’s decision upon judicial review if it is affected by jurisdictional error: see Migration Act 1958 (Cth), ss 474 and 476; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The High Court explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [2] as:
…breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all" and is in that sense "void".
GROUNDS OF REVIEW
The Applicants’ grounds of review are set out in the application filed on 21 December 2021 (‘the Application’). There are two grounds of review.
Ground One
The Tribunal erred in law by failing to give “proper, genuine and realistic consideration” to the evidence adduced or to “engage in an active intellectual process”, and “by asking a wrong question of law”. This resulted in miscarriage of justice.
Particulars
The First Applicant came to Australia on a study visa in 2014. The Tribunal failed to consider that the Applicant has made good academic progress and has completed the two Masters degree courses on time. The Tribunal gave overwhelming weight to the fact that he and his spouse have stayed in Australia for around seven years. It was submitted that the Tribunal failed to appreciate all the evidence provided by the Applicant in an intelligible manner after providing proper consideration as required by the Federal Court in CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 513 (‘CBN18’) at [83].
Ground Two
The Tribunal erred in law as it failed to provide adequate opportunity for the Applicant to put forward his case.
Particulars
The Applicant was self-represented at the Tribunal hearing. Due to pandemic related COVID restrictions, the Applicant was unable to focus on his normal duties. At the time of hearing some of the translation/interpreter services were very poor and the Applicant’s evidence was not properly conveyed to the Tribunal. Pursuant to s 363(1), the Tribunal failed to adjourn and grant some additional time to adduce proper evidence, so that adequate opportunity was provided to the Applicant. This approach of the Tribunal violated the principles of procedural fairness as enunciated and laid down by High Court in the case of Minister for Immigration and Citizenship v Li (2012). This also violates the principles of natural justice and the provisions of law resulting in miscarriage of justice.
CONSIDERATION
In respect of Ground One, the Applicants bear the onus of proof for establishing the Tribunal did not engage in an active intellectual process and such a claim must be supported by clear evidence: see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [48].
It was submitted by the First Respondent that generally, there is no obligation on a decision-maker to refer in its written reasons to every piece of evidence and every contention made by an Applicant to comment as to why it rejected, or attributed less weight to, a particular item in respect of every item of material before it, or to conduct a ‘line by line refutation’ of the evidence. The First Respondent relied upon the decisions in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14] and Sun v Minister for Immigration and Border Protection (2017) 157 ALD 437 at [46] in support of this proposition.
The Tribunal’s role is based in statute, and it is required only to consider matters prescribed by the legislation. The Tribunal is required to consider the evidence, and any submissions made and then assess, having regard to the factors in Direction No. 69, whether the relevant criterion in cl 500.212 of Sch 2 of the Regulations has been satisfied.
It can be seen in [1] to [7] of the Tribunal’s decision that it had regard to the Applicants’ background, evidence submitted by them, and the visa application and supporting documents.
The Tribunal identified the oral evidence given on behalf of the Applicants and submissions made at [8] to [13] of its decision and had regard to the First Applicant’s educational history at [24], [26] and [28].
It also identified the necessity for and took into account at [16] that the First Applicant had enrolled in a further course of study which was a requirement for a Student visa to issue.
The Tribunal properly identified at [18] and [19] of its decision its task required by cl 500.212 and that Direction No. 69 was not to be used as a checklist but a guide in considering the Applicants’ circumstances as a whole and reaching a finding as to whether the Applicants satisfied the genuine temporary entrant criterion.
At [22] to [29] of its decision, the Tribunal carefully considered the First Applicant’s:
(a)circumstances in Nepal, his home country;
(b)potential circumstances in Australia;
(c)the value of the proposed course of study to the First Applicant’s future; and
(d)immigration history.
The Tribunal noted at [30] of its decision that it considered the evidence individually and cumulatively and while there was some evidence that weighed in the First Applicant’s favour, it was not satisfied the First Applicant intended to stay in Australia temporarily.
The Tribunal clearly identified the aspects of the evidence that lead it to this conclusion including the length of time the First Applicant had been in Australia, that he had returned to Nepal only once since 2014, he had completed a Masters degree and then a further combined Masters degree and was now enrolled in a Diploma course, his son was managing his property obligations in Nepal, he had worked in unrelated fields since being in Australia, and that his Wife and daughter, who is a citizen, are in Australia.
As such, it was open to the Tribunal to conclude that the First Applicant had incentive to remain and did not intend genuinely to stay temporarily in Australia and thus, did not satisfy the genuine temporary entrant criterion in cl 500.212.
It was submitted on behalf of the First Respondent that the Tribunal’s conclusions fell within the area of ‘decisional freedom’ or ‘genuinely free discretion’ within which reasonable minds might differ: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [7], [56] and [92].
The Applicants have referred to CBN18 in the particulars in support of Ground One. It is not clear what aspect of that decision they rely upon.
CBN18 was decided in the context of the scheme of review set out in Part 7AA of the Act and not Part 5 as in this proceeding. The decision in CBN18 turned on a finding that the Applicants in that case had given inconsistent evidence. That was not a feature in this case that led to the Tribunal’s decision, therefore CBN18 is not relevant to this proceeding.
I find that the conclusion reached by the Tribunal that the First Applicant did not intend genuinely to stay temporarily in Australia and thus, did not satisfy the genuine temporary entrant criterion in cl 500.212, was reasonable. Its reasons provide a logical and evident foundation for its findings. As such, no jurisdictional error is made out in respect of Ground One and it must fail.
In respect of Ground Two, the Applicants argue that the Tribunal failed to provide adequate opportunity for them to put forward their case and as such, made an error of law.
The particulars relied upon are:
(a)the First Applicant appeared before the Tribunal without representation;
(b)some ‘translation/interpreter services were very poor’ and the Applicants’ evidence was not ‘properly conveyed to the Tribunal’;
(c)the First Applicant was ‘unable to focus on his normal duties’ due to ‘pandemic related COVID restrictions’; and
(d)the Tribunal failed to ‘adjourn and grant some additional time to adduce proper evidence’.
In respect of the First Applicant’s complaint that he appeared in the Tribunal without representation, there is no absolute right to representation in migration proceedings: see WZARX v Minister for Immigration and Border Protection [2014] FCA 423 at [13]; AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 at [51].
The initial letter from the Tribunal to the Applicants dated 4 March 2020 (CB154-162) provided information for the Applicants about obtaining advice, assistance and representation in their dealings with the Tribunal and when appearing before it. Accordingly, no error is established by this complaint.
In respect of the allegation that the translation/interpreter services were very poor, if this was the case, it may give rise to jurisdictional error. The principles relevant to the requisite standard of interpretation at a Tribunal hearing are summarised by North J in SZOBN and Another v Minister for Immigration and Citizenship (2010) 119 ALD 260 at [27]. However, the Applicants bear the evidential burden of proving this was the case at the Tribunal hearing and have provided no evidence in support of this claim. No issue was raised by the Applicants in the period between the date of hearing and the date of the Tribunal’s decision that there had been any problem with the translation/interpreter services. Therefore, I find no error is established by this complaint.
In respect of the Applicants’ claim that ‘due to pandemic related COVID restrictions the applicant was unable to focus on his normal duties’ it is unclear how this related to the Tribunal’s process, the hearing or its decision.
At the time of the hearing, the First Applicant was employed and working in aged care as referred to at [23] of the Tribunal’s decision.
The Applicants were able to submit a large amount of evidence to the Tribunal and responded promptly to requests for further information. There is no evidence to suggest the Applicants were deprived of an opportunity to participate in the process or to appear at the hearing before the Tribunal. Accordingly, no error is established by this complaint.
The Applicants allege that “pursuant to Sec 363(1) the Tribunal failed adjourn and grant some additional time to adduce proper evidence, so that adequate opportunity is provided to the applicant”. The Applicants assert that this meant they were not provided procedural fairness by the Tribunal.
On 20 March 2020 the Tribunal wrote to the Applicants advising them their review application had been received and inviting them to provide any material or written arguments to the Tribunal as soon as possible (CB154-155).
On 24 May 2021, the Tribunal wrote to the Applicants inviting them to attend the hearing on 18 June 2021, pursuant to s 360 of the Act (CB167-179).
On 25 May 2021, the Applicants submitted a Response to Hearing Invitation together with supporting material which included the First Applicant’s enrolment confirmation with the Holmes Institute (CB180-194).
The First Applicant attended the hearing by telephone on 18 June 2021. At the hearing, The Tribunal received oral evidence and argument from the First Applicant in support of the Application.
On 8 July 2021, the First Applicant wrote to the Tribunal requesting an update about the case (CB199-200).
The Applicants by an undated letter provided the Tribunal with their updated address (CB204).
On 1 December 2021, the Tribunal wrote to the First Applicant (CB205-206) in accordance with s 359A of the Act inviting him to comment on or respond to adverse information that he was not enrolled in a course of study.
The particulars of the information put to him were:
According to the Provider Registration and International Student Management System (PRISMS) records available to the Tribunal, you are not currently enrolled in a course of study in Australia.
The First Applicant was advised that the information was relevant to the review because the Regulations state that at the time of decision to be eligible for the grant of a Student visa an applicant must be enrolled in a full-time registered course of study. He was also advised that if the Tribunal relies on the information indicating he is not enrolled to study in making a decision, it may lead to the decision under review being affirmed.
The First Applicant was invited to give comments on or respond to the above information in writing by 15 December 2021. The First Applicant provided a response to the invitation on 7 December 2021 (CB208-227) and provided evidence of a new enrolment in a Diploma of Leadership and Management at Opulence College.
The Tribunal made its decision on 8 December 2021.
Section 357A of the Act provides that Div 5 of Pt 5 is “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. It is apparent that the Tribunal complied with the requirements of Div 5 of Pt 5 of the Act as set out above.
The Applicants could have provided any additional evidence or submissions to the Tribunal between the date of filing their application, being 2 March 2020, to the date of the decision, being 8 December 2021, which was a total period of 1 year and 8 months.
Further, at the conclusion of the hearing before the Tribunal, the Applicants could have asked for an adjournment to provide further evidence or submissions in support of their Application. There is no evidence indicating they did so.
The Tribunal was required to act in accordance with the overarching objectives in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) in force at that time, in carrying out its functions.
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision making of the Tribunal.
Having considered the clear pathway taken by the Tribunal outlined above, I find that there was no procedural unfairness in the way the Tribunal conducted itself and no error is established by this complaint.
Accordingly, I find that no jurisdictional error is made out in respect of Ground Two and it must fail.
CONCLUSION
For the reasons given above, I find that no jurisdictional error is established and the application for judicial review is, accordingly, dismissed.
COSTS
The First Respondent sought costs.
As the application has been dismissed, it is usual that costs should follow the event. Accordingly, I order costs in accordance with the Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court of Australia(Division 2) (General Federal Law) Rules 2021 (Cth) in force at the time of filing in the amount of $7,853.00.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman.
Dated: 10 April 2025
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