Thapa v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1015
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thapa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1015
File number(s): SYG 984 of 2021 Judgment of: JUDGE MCCABE Date of judgment: 17 October 2024 Catchwords: MIGRATION – application for judicial review – student visa – review of a decision of the Administrative Appeals Tribunal (Tribunal) - whether the applicant could satisfy the ‘genuine temporary entrant’ criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – whether the Tribunal had a statutory obligation under s 359AA of the Migration Act 1958 (Cth) to give the applicant notice – consideration of factors in Direction 69 –jurisdictional error established. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 [2024] HCA 12
Minister for Immigration and Border Security v SZMTA [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 2 October 2024 Solicitor for the Applicants: Mr H Bhatta, Residency Legal Solicitor for the First Respondent: Ms M Kelly, Sparke Helmore Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
SYG 984 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BINITA BASNET THAPA
First Applicant
AMIT BIKRAM THAPA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
17 OCTOBER 202410 OCTOBER 2024THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing its decision dated 29 April 2021.
2.A writ of mandamus be issued directed to the Administrative Review Tribunal (the successor body to the second respondent) requiring it to determine the applicants’ application for review according to law.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 17.05(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
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 MCCABE:
The Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate (delegate) of the first respondent (minister) to refuse Ms Binita Basnet Thapa’s, request for a Student (Temporary) (Class TU) (Subclass 500) (student visa). Ms Thapa, the first applicant, says the Tribunal’s decision is fatally compromised by jurisdictional error in at least two respects. The minister denies there is any material jurisdictional error but adds the Court should refuse to provide relief in the event of error because Ms Thapa has already successfully completed the course which prompted her to seek the student visa in the first place.
Ms Thapa says the Tribunal’s decision should be quashed so a decision can be made according to law. While she has long since completed the course which prompted the visa application in the first place, she said she worries a history of being refused a visa might create difficulties when travelling for her and her husband, Mr Thapa, who is the second applicant in these proceedings. Ms Thapa says she is hopeful she could persuade the Tribunal to take a different view upon remittal that would have the effect of “clear[ing] our immigration history”.
I have concluded the Tribunal’s decision is affected by material jurisdictional error in one respect, and that it is appropriate to grant the relief which has been sought. I explain my reasons for that conclusion below.
Background to these proceedings and the Tribunal’s decision on review
Ms Thapa first arrived in Australia in 2008 on a student visa. She successfully completed several educational courses in this country while holding successive student and bridging visas. (I note the Tribunal uncontroversially summarised Ms Thapa’s educational history in Australia at [17] of its reasons for decision, and I adopt that summary for the purposes of this judgment.)
In September 2018, Ms Thapa applied for the student visa which is the subject of these proceedings when she enrolled in a Diploma of Leadership and Management course. The course was scheduled to begin in October 2018 and conclude in October 2019. Mr Thapa also applied for a visa as a dependent spouse.
The delegate refused Ms Thapa’s student visa application on 14 November 2018. The delegate was not satisfied Ms Thapa satisfied the applicable requirements in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). In particular, the delegate was not satisfied Ms Thapa “intends genuinely to stay in Australia temporarily” as a student, the requirement imposed by cl 500.212(a).
Ms Thapa filed her application for review in the Tribunal on 3 December 2018. She continued studying while she waited for a Tribunal hearing. The delay was such that she had time to complete the Diploma in Leadership and Management which prompted the visa application. Mr Bhatta, the applicants’ lawyer, said Ms Thapa took the opportunity to commence (in February 2020) an Advanced Diploma in Leadership and Management course. I understand she has now completed that course as well.
Ms Thapa filed material in support of her application (including the completed Request for Student Visa Information form reproduced in the court book at pp 93ff) in response to an invitation issued pursuant to s 359(2) of the Migration Act 1958 (Cth) (Act) dated 7 April 2020.
A hearing invitation was sent out on 9 October 2020 in anticipation of a hearing listed on 26 October 2020. That hearing was vacated at the applicants' request because it clashed with a religious holiday.
A fresh invitation was sent to Ms Thapa on 28 January 2021 in relation to a hearing that was (re)listed for 12 February 2021: court book at pp 123ff. That invitation asked Ms Thapa to provide a copy of her current Certificate of Enrolment and:
Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia. …
The letter of invitation added:
We may assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate's decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
On 10 February 2021, Mr Bhatta, the applicants' migration agent at the time, filed a Response to hearing invitation – MR Division document that annexed a submission in the form of a statement signed by Ms Thapa, and various academic records (court book at pp 129ff). An Overseas Student Confirmation-of-Enrolment (CoE) was provided by email on 12 February 2021 (court book at pp 138ff).
The one-page written submission signed by Ms Thapa was substantially reproduced at [43] of the Tribunal's reasons. In the penultimate paragraph of that statement, Ms Thapa had said:
We believed it is better for us to go so that we get support from our extended family to look after the kid. We felt in months we have had baby and were in Australia that it is not just difficult to raise a kid at your own but also one parent has to stay home to look after the kid. That means we have to sacrifice our work for looking after which may not be the case as the grandparent will look after in Nepal.
The Tribunal hearing took place on 12 February 2021. A transcript of the Tribunal hearing was in evidence before me, annexed to the affidavit of Ms Sunita Thapaliya (the director of Residency Legal, the solicitors for the first applicant) affirmed on 30 October 2024 (exhibit 2). Ms Thapa appeared by telephone at the Tribunal hearing. She was asked questions by the presiding member about aspects of her evidence. The Tribunal member was obviously focused on the evidence in relation to Ms Thapa's study history. In the transcript of the hearing, the member said (transcript at p 3):
All right, now my concern is looking at your study history because, unfortunately, you know, you've completed some, sort of, high level bachelor degrees and now you appear to be going backwards in your study in terms of the study levels. And that study history – it might be the reason or part of the reason that I might affirm [t]he delegate's decision. Do you have anything you'd like to tell me about that? Any comment or response to that concern I have?
The Tribunal also heard oral submissions from Mr Bhatta. The transcript discloses he referred generally to the written submission of Ms Thapa. Mr Bhatta repeatedly emphasised (transcript at p 7) Ms Thapa intended to go back to Nepal, but he did not expressly refer to the relative cost of childcare (the subject of the passage from Ms Thapa's submission that I have quoted) as being a factor that should weigh heavily in the member's deliberations.
The Tribunal affirmed the delegate's decision on 29 April 2021. In its reasons, the Tribunal referred to the matters set out in Direction 69[1], which provides authoritative guidance on the approach to the so-called 'genuine temporary entrant' requirement in cl 500.212(a) of the Regulations. The Tribunal concluded Ms Thapa:
(a)had failed to demonstrate adequate research into the availability of relevant courses at home (at [18]-[19]);
(b)did have significant ties to her home country, but those ties did not of themselves provide a significant incentive to return there (at [20]);
(c)had a strong economic incentive to remain in Australia given her work industry and length of time spent in this country, amongst other factors (at [24]);
(d)had a study history that was not consistent with that of a genuine student (at [25]), given the course she wanted to study was not of great value to her future (at [37]).
[1] Direction 69 Assessing the genuine temporary entrant criterion for Student visa and Student guardian visa applications is a binding ministerial direction issued pursuant to s 499 of the Act.
The Tribunal appeared to give significant weight to its concerns over Ms Thapa's study history in reaching the conclusion that she failed to meet the criterion in cl 500.212(a) of the Regulations.
The applicants moved back to their home country in the wake of the Tribunal's decision. Mr Bhatta, who continues to represent the applicants (this time as a lawyer) said Ms Thapa continues to hold a bridging visa and had the option of returning to Australia.
The application for judicial review
The application for judicial review of the Tribunal’s decision was lodged on 2 June 2021. In these proceedings, the fate of Mr Thapa (who applied as a dependent applicant) necessarily depends on the outcome of Ms Thapa’s application for review. I will therefore focus on her case in the reasoning that follows.
The first ground of review
The first ground of review identified in the further amended application asserts jurisdictional error because:
…the Tribunal failed to discharge its statutory obligation under s 359AA of the Migration Act 1958 in giving the applicant notice under the section as to unfavourable information.
In the particulars accompanying that ground, the applicants focus on what they say is the Tribunal's failure to:
·inform Ms Thapa she could ask for additional time to comment on the material that was put to her at the hearing (in accordance with s 359AA(1)(b)(iii) of the Act); and
·give clear particulars of the information it was putting (as required under s 359AA(1)(a) of the Act), or make sure Ms Thapa understood why the information was relevant to the review (as required under s 359AA(1)(b)(i) of the Act).
It is clear on the face of the transcript that the Tribunal gave Ms Thapa several opportunities to comment on the information contained in the enrolment records. However it did not expressly offer Ms Thapa additional time to consider her response to the Tribunal's questions about whether her enrolment history was consistent with her being a ‘genuine temporary entrant’.
Having said that, the details of Ms Thapa's enrolment history were well-known to her; indeed, she had provided the enrolment records to the Tribunal in advance of the hearing. The minister argued in written submissions that the enrolment information therefore falls within the exception in s 359A(4) of the Act. If that is correct, the obligations Mr Bhatta referred to in s 359AA are not engaged. Section 359A(4) of the Act says (relevantly) s 359A does not apply to information:
…
(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
…
Mr Bhatta says the exclusion is irrelevant because the Tribunal chose to question Ms Thapa about the information - and once it did so, the procedural requirements in s 359AA were engaged. Mr Bhatta argued the Tribunal should not be distracted by the way the information came to the Tribunal's attention; if it thought the information was important and chose to put it to the applicant at the hearing, the procedural obligations in s 359AA clearly applied.
It became apparent in oral submissions that Mr Bhatta regarded the Tribunal's failure to expressly offer the applicant additional time to consider a response was the most serious shortcoming, and that he placed less emphasis on the supposed non-compliance with requirements in sub-ss 359AA(1)(a) and (1)(b)(i). That is just as well, given:
(a)the transcript records a lengthy exchange between the member and Ms Thapa starting at p 4 which makes clear the relevance of the information - information that was also a focus of concern for the primary decision-maker (see record of decision at p 69 of the court book); and
(b)the exchange indicates Ms Thapa understood why the questions were being asked.
Mr Bhatta argued the Tribunal was not as clear or as detailed as it might have been when it addressed the issue with Ms Thapa, but that criticism is not born out by the transcript.
While I am satisfied the Tribunal did not fail to comply with the obligations in sub-ss 359AA(1)(a) and (1)(b)(i), if they applied, the fact remains the Tribunal did not expressly offer Ms Thapa additional time to comment, which might have included the obligation to offer a brief adjournment. That is likely to be a jurisdictional error if s 359AA applied to that information in the circumstances. But does it apply in the circumstances of this case?
Ms Kelly, for the minister, pointed out it was necessary to read ss 359A and 359AA together. She argued the procedural obligations in s 359AA could not be engaged in relation to information that was excluded under s 359A(4). To this end, she referred me to the decision of the Full Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46. That case dealt with the operation of ss424A and 424AA of the Act (parallel provisions that governed reviews conducted under Part 7 of the Act). A question arose as to the way the Tribunal put country information to the applicant at the hearing. The Court noted country information fell within the definition of information that would not trigger an obligation under s 424A. In those circumstances, the Tribunal could not be criticised for failing to comply with any procedural requirements in s 424AA that might otherwise apply to information that was not excluded under s 424A. Moore J explained (at [2]):
Section 424AA is, in my opinion, clearly not intended to create a duty to take particular steps independently of the existence of a duty under s 424A. In a case such as the present it cannot be said that the Tribunal failed to perform a duty that might give rise to jurisdictional error.
Tracey and Foster JJ elaborated on why this was so in their judgment, explaining (at [89]-[90]):
89The provisions are designed to facilitate the conduct of reviews contemplated by Pt 7 of the Act. If s 424A were triggered during the run of a review hearing and s 424AA had not been enacted, the hearing would have had to be adjourned in order to enable the s 424A(1) written particulars to be given. Such an outcome would be disruptive and inconvenient. If, as is now the case since the introduction of s 424AA into the Act, clear particulars of the relevant information are given at the hearing orally and the Tribunal otherwise complies with s 424AA(b) in its entirety, then the obligations imposed upon the Tribunal by s 424A(1) will be satisfied in substance during the course of the review hearing by the giving of those oral particulars. In that way, the objects sought to be achieved by s 424A(1) will be met.
90Section 424A(1) prescribes what must be done. What must be done is subject to the exceptions in subs (2A) and subs (3). Section 424AA is thus facultative--it is one way by which the Tribunal can satisfy the substance of what is required of it under s 424A(1). If it elects to invoke s 424AA, it may do so expediently and by way of oral communication rather than by written communication. Given the primacy of s 424A(1) and the exceptions to it, it would be absurd to interpret the section in a way which exempted country information from the s 424A(1) requirements but did not do so in respect of the s 424AA requirements.
The same logic applies to the interpretation of ss 359A and 359AA. The information at issue in this case was provided by the applicants. The information had already been considered by the delegate. It was therefore not information that engaged the procedural obligations in s 359AA. There is no jurisdictional error just because the Tribunal does not comply with procedural requirements that do not apply. It follows the first ground of review cannot succeed.
The second ground of review
The second ground of review asserts:
…the Tribunal failed to engage with a clearly articulated and substantiated claim that certain family ties in the applicants' home country of Nepal were a significant incentive for them to return to Nepal.
In particular, Mr Bhatta argued the applicants' submission about the relative cost of childcare (reproduced above, at [13]):
(a)was made with sufficient clarity in the submission signed by Ms Thapa; and
(b)was relevant to the question before the Tribunal,
but was not actually addressed by the Tribunal.
Mr Bhatta argued the Tribunal’s failure to address this submission amounted to a jurisdictional error. He said this error was material because if the information had been considered rather than being ignored, it might have led to a different outcome.
I will deal first with the question of relevance. The Tribunal is required to have regard to the terms of Direction 69 as it evaluates whether the applicants satisfy the 'genuine temporary entrant' requirement in cl 500.212 of the Regulations. Clause 6 of Direction 69 requires the decision-maker to have regard to the applicants' circumstances in their home country and their potential circumstances in Australia. Clause 9 requires the decision-maker to consider the applicants' circumstances in that other country, including:
…
b.the extent of the applicant's personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country [emphasis added];
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant's circumstances relative to the home country and to Australia;
…
Clause 10 also requires the decision-maker to have regard to the applicants' circumstances in their home country relative to the circumstances of other persons in that country.
Mr Bhatta drew attention to the decision of the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184. He says Applicant WAEE stands for the proposition that a decision-maker must address every substantive and relevant submission that is articulated by a party - and a failure to do so may well be a jurisdictional error. The essence of the decision in Applicant WAEE (at least for present purposes) was summarised by Bell, Gageler and Keane JJ in Minister for Immigration and Border Security v SZMTA [2019] HCA 3 at [13], as follows:
… Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant's case, including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case.
[citations omitted]
Applicant WAEE and SZMTA both refer to the decision-making process in the Act which deals with protection visas, but Mr Bhatta says the same expectation applies to decisions made in relation to student visas.
It should be said at once that the Tribunal is not required to actively engage with material that is not relevant to the statutory task it is undertaking. Relevance is ultimately an objective criterion. As McHugh, Gummow and Hayne JJ explained in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (at [73]):
…[t]he considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider…
It follows the Tribunal is not inevitably required to deal comprehensively with every last piece of evidence or every submission - no matter how vociferously it may be pressed - unless it is relevant to the decision the Tribunal is required to make.
That being said, I accept the evidence and submission in question here regarding the relative cost of childcare and what that might say about the incentives to stay in Australia is relevant when one has regards to the terms of Direction 69 (outlined above at [33]-[34]).
I do not understand the minister to challenge the potential relevance of the submission to the Tribunal's statutory task. The minister's concerns are mainly directed to the first issue with the ground of appeal that I identified above - namely, whether the Tribunal failed to engage with a claim that was “substantial and clearly articulated” in the sense described in SZMTA. To be precise, I understand the minister to argue:
(a)the claim was not 'clearly articulated' and identifiable given all the material before the Tribunal at the hearing, so that any failure to take account of that matter could be said to be legally unreasonable; and
(b)the Tribunal did adequately address the substance of the claim in its reasons, in any event, because it referred to the submission and should be taken to have factored that into its conclusion.
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, the High Court discussed what was expected of an executive decision-maker in dealing with submissions or evidence in a protection case (although the same reasoning applies here). Kiefel CJ, Keane, Gordon and Steward JJ explained (at [24]-[25]):
24Consistently 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 [[1995] FCAFC 1726], 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.
25It 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.
[citations omitted]
The plurality in Plaintiff M1/2021 went on to note (at [27]):
… [the] 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.
Mr Bhatta points out the Tribunal appeared to misunderstand at least one relevant piece of evidence. That misunderstanding may go some way towards explaining the supposed failure to deal with the relative costs of childcare. Mr Bhatta said the Tribunal proceeded on the mistaken assumption (articulated in a finding at [18] of the Tribunal’s decision) that neither of the applicants' children lived in Australia with the applicants. As it happens, Mr Bhatta pointed out at least one of the children did reside with the applicants at the relevant time. The true situation with respect to the child in Australia was arguably apparent from Ms Thapa's submission, which appears to assume (without expressly saying) that one of their children remained with them in Australia.
The Tribunal does not expressly identify the evidence on which it relied to make the finding at [18] of its reasons that both children resided in Nepal, but Mr Bhatta suggests the Tribunal may have referred to and misunderstood an entry in the Request for Student Visa Information form which had been provided to the Tribunal well in advance of the hearing (court book at p 93ff). That document lists the other members of Ms Thapa's family including her spouse who is the second applicant, her two children and her father. The table in the document records Ms Thapa saying she had not seen one of her two children and her father since March 2017, but the table does not suggest she had not seen her other son during the period, which tends to indicate he was in Australia with the applicants.
It seems the Tribunal's finding of fact in this respect was in error, although the mere fact the Tribunal made a mistake (if that is in fact what occurred) does not inevitably amount to a jurisdictional error. The significance of the mistake may lie in the fact a (probably) mistaken assumption about one fact might have caused the decision-making process to miscarry if that mistaken finding obscured the relevance and significance of other matters that should have been taken into consideration.
The minister notes in this case:
(a)the only reference to the relative cost of childcare being an issue is found in the penultimate paragraph of Ms Thapa's written submission. The submissions did not signal why that fact was relevant to a particular provision of Direction 69, and Mr Bhatta’s oral submissions at the Tribunal hearing did not expressly mention the relative cost of childcare, much less explain its relevance and importance to the Tribunal's task;
(b)the contents of the submission must be considered along with the other evidence Ms Thapa gave at the hearing. Mr Bhatta's written submissions provided in these proceedings quoted from pp 4-5 of the transcript of the hearing. The passage of transcript recorded Ms Thapa's answers to questions from the member about the applicants' working pattern at the time of the hearing. Ms Thapa confirmed she and her husband were both working at the time. Ms Thapa did not refer to any difficulties with childcare. The fact she failed to mention issues with childcare at that point was said to undercut the applicants' claim that she pressed the evidence about the relative affordability of childcare as a reason why she would want to return home instead of staying in Australia. Mr Bhatta pointed out from the bar table that the applicants were only able to work for limited hours at the time under the terms of their bridging visas, so it may not have occurred to Ms Thapa to press the issue when giving evidence about her prevailing work pattern.
Particularly in circumstances where the applicants were represented at the hearing, the minister argues there was a failure on the applicants' part to clearly articulate the relative costs of childcare as a substantial issue that needed to be expressly addressed.
Whilst I agree that Ms Thapa and Mr Bhatta did not do a good job of pressing the claim with respect to the relative costs of childcare at the Tribunal hearing, I nonetheless find the issue was sufficiently and clearly articulated in Ms Thapa’s written submission, and its implications are arguably clear. If the Tribunal did not discern the significance of the submission, that was likely because it was operating under the misunderstanding that neither child was present in Australia at the relevant time, when the evidence suggests one of them was.
Did the Tribunal fail to deal appropriately with the submission, accepting (as I do) that it was adequately articulated or apparent? As the High Court observed in Plaintiff M1/2021, the Tribunal's reasoning process in that regard is to be evaluated according to whether it falls “within the bounds of rationality and reasonableness”.
The minister argued in written submissions that the Tribunal acknowledged in its reasons that it had read and considered all the evidence it had received. A bare assertion by the Tribunal that it has had regard to all the relevant material will count for little, but the Tribunal did actually reproduce the text of the submission in question in the body of its reasons. The minister pointed out the Full Court in Applicant WAEE made the observation that a Court should be slow to infer the Tribunal failed to consider something that it took the time to record in its reasons. As French, Sackville and Hely JJ pointed out (at [47]):
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
As I understand the minister's argument, it was unnecessary for the Tribunal to expressly deal with the submission about the applicants' access to family members in Nepal for child-caring purposes because that consideration was effectively subsumed into the Tribunal's more general findings about Ms Thapa's ties with her home country. The minister emphasised the Tribunal found the applicants retained "significant" family ties with Nepal. On that approach, the Tribunal was not acting unreasonably when it did not highlight the evidence about the relative costs of childcare (and the implication that it created an incentive to return home), given:
(a)that evidence did not appear to be a significant part of the applicants' case at the hearing; and
(b)the Tribunal did discuss the applicants' circumstances and ties and the incentives to return to Nepal at a more general level.
I acknowledge the Tribunal set out Ms Thapa’s submissions in its reasons when it reproduced the contents of the submission document, but the Tribunal did not highlight or otherwise engage with the submission in relation to the relative costs of childcare and the implications when considering the matters referred to in Direction 69. A fair reading of those reasons does not suggest the particular submission was subsumed into other evidence that was weighed at a more general level. The Tribunal assumed both children were in Nepal with relatives; while that of itself suggested strong family ties, as the Tribunal found, it stands to reason the Tribunal would not turn its mind to the relative costs of childcare if it did not appreciate where the children were situated.
Given I have found the relative costs of childcare was a relevant consideration, the failure to take adequate account of that matter is a jurisdictional error.
I am satisfied it is a material jurisdictional error because "there is a realistic possibility… the decision…could have been different if the error had not occurred": see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 [2024] HCA 12 at [7]. I take that view because the consideration was not fanciful and might have given credit to the applicants' claims that they did, in fact, intend returning home for practical reasons. Accordingly, I am satisfied that this ground of appeal has been made out.
The discretion to provide relief in respect of jurisdictional error
The minister pointed out the Court has the discretion to provide or deny relief where it is satisfied there is a material jurisdictional error. The minister says the discretion ought to be exercised against Ms Thapa in circumstances where she has long since completed the course of study which apparently prompted the application for a student visa. (Indeed, she was able to enrol in and complete further studies while the review proceeded in the Tribunal.) She and her husband have since returned home to Nepal.
One wonders what the Tribunal would make of the application if it were remitted for the Tribunal's consideration given the passage of time and all that has transpired. But Ms Kelly conceded the minister could not and did not say there was no possible utility to such a review. Mr Bhatta made clear the applicants had what appears to be a legitimate interest in vindication: they say they want the primary decision overturned so they would not be required to declare they had been refused a visa. I accept that might be an issue should they wish to return to Australia or visit some other countries that routinely ask whether an applicant for entry has ever been refused a visa.
I accept it would not inevitably be futile for the applicants to return to the Tribunal. While there must be questions over the prospects of a favourable outcome for the applicants, those are questions for the Tribunal.
In all the circumstances, I am satisfied it is appropriate to quash the decision of the Administrative Appeals Tribunal dated 29 April 2021 and issue a writ of mandamus directed to the Administrative Review Tribunal (the successor body to the Administrative Appeals Tribunal) requiring it to determine the applicants' application for review according to law.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 17 October 2024
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