Tshering v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 95
•2 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tshering v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 95
File number: PEG 291 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 2 November 2021 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether Tribunal denied the applicant procedural fairness by conducting hearing by phone – whether Tribunal failed to consider relevant information – whether Tribunal failed to give appropriate weight to information – whether Migration Agent’s conduct amounted to fraud on the Tribunal – whether Tribunal’s decision is “Eros affected” – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 360, 366, 476
Migration Regulations 1994 (Cth), cl 500.212 of Schedule 2
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Eros v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1061
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Shoji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1920
Singh v Minister for Immigration and Anor [2020] FCCA 2799
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1
Solanki v Minister for Immigration & Anor [2020] FCCA 2918
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109
SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131
Division: Division 2 General Federal Law Number of paragraphs: 102 Date of last submission/s: 27 October 2021 Date of hearing: 22 September 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 291 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GADO TSHERING
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
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 KENDALL:
BACKGROUND
The applicant in these proceedings is a citizen of the Kingdom of Bhutan. He arrived in Australia in February 2019 on a tourist visa (Court Book (“CB”) 39). That visa would have expired on 15 May 2019 (CB 193).
On 14 May 2019, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 1-19). He was enrolled to study “General English” (CB 39).
On 4 July 2019, a delegate of the first respondent refused to grant the applicant the visa
(CB 37-42). The delegate found that the applicant did not meet cl 500.212(a) of the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the delegate was not satisfied that the applicant was “a genuine temporary entrant”.
The applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 23 July 2019 (CB 43-44).
On 10 February 2020, the Tribunal invited the applicant to provide further information in relation to his current enrolment status and the genuine temporary entrant criterion (CB 50-57).
The applicant provided further information and supporting documents to the Tribunal
(CB 62-77).
On 27 July 2020, the applicant’s migration agent provided written submissions and further supporting documents to the Tribunal (CB 96-163).
On 31 July 2020, the applicant appeared at a hearing before the Tribunal with the assistance of an interpreter (CB 164-166).
Following the hearing, the applicant’s migration agent provided further written submissions and supporting documents to the Tribunal (CB 167-183).
On 7 September 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 187-201).
On 7 October 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 15 pages long and spans 58 paragraphs. Six pages set out Direction 69 – the relevant Ministerial direction for matters of this sort.
The Tribunal began by identifying the type of visa under review, summarising the delegate’s decision and confirming that the applicant appeared at a hearing and was assisted by an interpreter and a migration agent (at [1]-[5]).
The Tribunal then explained that the issue in the present case was whether the applicant was a genuine temporary entrant (at [7]).
The Tribunal continued:
Genuine applicant for entry and stay as a student (cl.500.212)
8. Clause 500.212 requires 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) my 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.
Does the applicant intend genuinely to stay in Australia temporarily?
9. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
•the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal then detailed the evidence provided by the applicant. Relevantly, the Tribunal:
(a)confirmed that the applicant had read the delegate’s decision and understood that the determinative issue was whether he was a genuine temporary entrant (at [11]);
(b)noted that the applicant had said that he was enrolled in a “degree in communication” and had provided confirmation of enrolments in three courses that would conclude in May 2023 (at [12]);
(c)noted that the applicant had provided a response to the request for information and had advised that he did not wish to add or vary his responses (at [13]);
(d)explained that the applicant had completed a Bachelor of Arts degree in Bhutan and worked as a high school teacher for three years (earning $7,404 a year) before arriving in Australia (at [14] and [26]). Further, he had not returned to Bhutan since arriving in Australia (at [15]);
(e)noted that the applicant had completed two vocational English courses and one “pre-intermediate” course and was currently studying an “intermediate” course (which would lead to a Diploma of Leadership and Management) (at [17]);
(f)noted that the availability of similar courses in Bhutan, as described by the applicant, was “hardly any” as English courses “are not taught after school” (at [18]);
(g)noted that the applicant had no employment history in Australia (at [19]) and that his parent, spouse and child live in Bhutan, while his sister lives in Australia (at [20] and [27]).
(h)noted that the applicant’s assets in Bhutan include a truck, car and family land (at [21]);
(i)explained that the applicant’s evidence was that he intended to return to work in the education sector so that “he can help children develop into future leaders” and attract a higher pay package (at [22]). The applicant advised that he believed he would earn $700-$800 per month when he returned to Bhutan (at [23]);
(j)noted that that the applicant stated that he came to Australia as a tourist and then decided to study. He said he intended to stay until “completing his study” and then said he intended to stay for three months. He indicated that he enrolled in courses on a date in April but, when asked again, said that he “did not know” (at [26]); and
(k)noted that when asked whether he had anything further to say, the applicant stated that he was “intent on study doesn’t have anything to say” (at [28]).
The Tribunal explained that the applicant’s migration agent had relied on the written submissions that had been provided, stating further that the applicant was “working as a monk” (at [29]).
The Tribunal noted that a large number of documents had been provided to the Tribunal but that the applicant and his migration agent had not referred to them. The Tribunal itself referred to a letter from a High School in Bhutan which stated that the applicant had a position to return to after his studies and that he would be promoted. The Tribunal also noted that the applicant had provided completion certificates for his English courses (at [30]).
The Tribunal then itemised the 19 attachments that were provided to it on 27 July 2020 (at [31]). The Tribunal noted that there was a letter of support from a Monastery (which endorsed the applicant continuing his studies) but that it was hard to ascertain what value the marketing and communications courses had to the applicant’s role at the Monastery. The Tribunal also noted that the applicant had provided a 36 page statement of purpose and his migration agent had provided a 15 page submission (at [32]-[33]).
The Tribunal summarised the applicant’s statement of purpose as follows:
34. The applicant's statement is 36 pages in length, it has no paragraph numbers and is undated. The Tribunal makes several observations in relation to that document. As to the relevance of his courses of study he stated that his plan is to establish “an initiative to support our monastery and connecting monks to general public and Bhutanese citizens overseas mainly ... To organise our works, teaching or representations of monastery to be heard via social media or video marketing over Internet so that I can arrange the donation to fund our religious programs.'' The applicant proceeds in the statement to expound upon fundraising for non-profit organisations at some considerable length. However the applicant is employed as a teacher in a secondary school. Whilst he may have some association with a monastery in his home country the utility of spending approximately four years studying in Australia in the field of marketing and communication is not immediately apparent. As to his future plans the applicant stated: “my only dream is to finish my studies in Australia and then start my own business in the home country Bhutan and start to live with my family”. The nature of his intended business or career is not stated.
The Tribunal noted that the applicant’s migration agent’s first written submission was replete with assertions of fact as to the applicant's circumstances and intentions which were not contained in the applicant's statement of purpose. Nor were they repeated in oral evidence. Accordingly, those matters were given little, if any, weight. Further, the submission gave little further insight into the utility of the current and proposed courses of study (at [35]). The Tribunal noted that the post-hearing submission was the same in content but now contained paragraph numbers, pagination and a date (at [36]).
The Tribunal then explained:
37. Whilst not diminishing the applicant's evidence given both orally and in writing, his circumstances can be summarised as follows. He completed a Bachelor of Arts Degree in his home country and then has worked as a language teacher at a secondary school since 2016. He apparently has some association with a monastery in his home country. He arrived in Australia on 11 February 2019 as the holder of a tourist visa. His intentions in travelling to Australia remain unclear notwithstanding he was asked to explain. One day prior to the expiry of the tourist visa he applied for a student visa, on 14 May 2019. He did not touch upon this in his oral evidence or in his undated narrative statement. It is tolerably clear that at the time of applying for the student visa he intended to study several vocational marketing and communication courses. These will occupy him until at least 12 May 2023. It appears that he has leave of absence from his teaching position for two years. His former employer has offered him better employment, as a teacher, when he returns. The applicant has not explained the relevance or utility of vocational courses in marketing and communication to his employment as a teacher. However the courses are asserted to be of some relevance to his role at the monastery, apparently he seeks to engage in fundraising activities for the benefit of the monastery. Although in other documents he refers to an intention to start his own business but does not state the nature of that business.
The Tribunal then considered “the applicant’s circumstances in Bhutan”. The Tribunal found that the applicant had been able to demonstrate ties to Bhutan (personal and economic) which act as an incentive to return at the completion of the proposed study. Further, the Tribunal accepted that the applicant may have family ties to Bhutan. However, the Tribunal was not satisfied (given the amount of time that the applicant had spent in Australia and the intended period of future stay in Australia) that any ties represented “a significant incentive for the applicant to return to Bhutan” (at [39]).
The Tribunal considered the applicant’s “potential circumstances in Australia”. The Tribunal noted that the applicant first arrived in Australia on a tourist visa in February 2019. That visa was for a period of three months. It was noted that the applicant’s proposed course of study would extend his stay until at least 12 May 2023. This “proposed additional stay” created “serious concerns” for the Tribunal – specifically, that the applicant was studying for the purposes of staying in Australia. Whilst the Tribunal accepted that “plans can change”, it considered that the applicant’s conduct was not that of a genuine temporary student. Rather, it suggested that the applicant had decided to extend his stay in Australia by “utilising the student visa programme” (at [40]).
The Tribunal continued:
41.The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First he has already obtained a tertiary degree in his home country. Secondly he has worked as a language teacher in a secondary school in his home country for three years and has an offer of employment with better conditions with the same employer when he returns. The applicant has not explained the relevance or utility of vocational courses in marketing and communication to do with his teaching career. He asserts such courses are generally relevant to an undefined role at a monastery in that he intends to pursue fundraising activities for the monastery. But in other respects he has referred to an intention to study for his own business but has not identified the nature of that business.
42.The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in 2019 shortly after his arrival in Australia and completed a series of vocational courses in English.
43.The Tribunal notes that this course plan is inconsistent with the applicant’s qualifications obtained in his home country, inconsistent with his work history (as a secondary school language teacher) and is inconsistent with his plans when he initially entered Australia. The applicant now wishes to pursue vocational courses in marketing and communication in Australia. The courses are asserted to have relevance to very vague future plans.
The Tribunal also noted that the applicant had worked as a secondary school language teacher in Bhutan and had indicated that he intended to “return to the same employment”. The Tribunal was not satisfied that the applicant had established that his study would provide him with significant benefits in relation to his proposed career plan when this was considered against the cost of the study and the fact that the applicant already had experience as a secondary school language teacher. Overall, the Tribunal was not satisfied that the applicant had demonstrated that his study had a realistic prospect of providing significant value to his future beyond the qualifications he already held (at [45]).
The Tribunal determined that there were no other relevant matters that it needed to consider (at [46]).
The Tribunal then stated:
47. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal then considered the applicant’s “economic circumstances in Bhutan” (as compared to Australia). In light of the economic differences between Bhutan and Australia, the Tribunal could not be satisfied that there was a significant incentive for the applicant to return to Bhutan (noting that the applicant’s personal and economic ties did not provide a significant incentive) (at [48]).
The Tribunal also expressed concern that the applicant’s intention to live in Australia may be motivated by factors other than study. It explained that the applicant had not demonstrated any clear and substantial improvements arising from his proposed study which would outweigh the significant time and monetary commitment further study would require. The Tribunal was not satisfied that the applicant had demonstrated that the proposed course added any value to his future plans (at [49]).
The Tribunal gave weight to the fact that the applicant had spent 16 months in Australia without returning to Bhutan. This led the Tribunal to determine that the applicant did not have strong personal ties to Bhutan. The Tribunal acknowledged that the applicant had a wife and child who both remain in Bhutan and that he has assets in Bhutan but noted that the applicant’s evidence was that he intended to remain in Australia and study until 12 May 2023. On that evidence, the Tribunal assessed the applicant's incentive to return to Bhutan to be “reasonably evenly balanced” (at [50]).
The Tribunal continued:
51. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant's intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant's circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
52. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.
The Tribunal then referred to the various factors in Direction 69 which the applicant had not addressed by way of evidence (at [53]). In that regard, the Tribunal determined as follows:
54.The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
55. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
On the basis of the above, the Tribunal refused to grant the applicant the visa (at [56]-[58]).
PROCEEDINGS IN THIS COURT
The applicant’s application for judicial review (filed on 7 October 2020) provides four grounds of review as follows:
Ground One
1. The Tribunal made a jurisdictional error by failing to provide the Applicant procedural fairness as required by section 360 of the Migration Act 1958 (Cth) (the Act).
Particulars
a. Section 360 of the Act relevantly provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments to the issues arising in relation to the decision under review [emphasis added].
b. At paragraph 4 of the Tribunal's decision record, the Tribunal provided that it exercised its direction to hold the hearing by telephone.
c. By holding a telephone hearing, the Tribunal denied the Applicants the opportunity to provide and be assessed by the Tribunal on all aspects of their evidence including body language, focus, facial expressions and demeanour.
d. In so doing, the Tribunal failed to provide the Applicants procedural fairness as required by section 360 of the Act.
Ground Two
2. Further or alternatively, the Tribunal made a jurisdictional error by failing to provide the Applicant procedural fairness.
Particulars
a. At paragraph 4 of the Tribunal’s decision record, the Tribunal provided that it exercised its direction to hold the hearing by telephone.
b. The telephone hearing was conducted with the assistance of an interpreter.
c. During the hearing, the Applicant experienced difficulties in understanding and interpreting the Tribunal's statements.
d. The failure to fully understand and interpret the Tribunal's statements was due to the Tribunal's decision to conduct the hearing by telephone and not in person as required by section 360 of the Act.
e. In so doing, the Tribunal denial the Applicant procedural fairness.
Ground Three
3. The Tribunal made a jurisdictional error in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) for Student visa applications by failing to have regard, as required by paragraph 9 of the Ministerial Direction No. 69 -Assessing the genuine temporary entrant criterion for Student visa applications (Direction), to the following factors in considering whether the applicant has reasonable reasons for not undertaking study in his home country.
Particulars
a. Subparagraph 9(a) of the Directions provides decision makers should assess whether the applicant has reasonable reasons for not undertaking the study in their home country.
b. The Tribunal failed to have regard to the Applicant's reasons for not undertaking the course of study in his home country.
Ground Four
4. The Tribunal made a jurisdictional error in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Regulations for Student visa applications by failing to have regard, as required by paragraph 9(b) of the Direction, to the following factors in considering the applicant's personal ties to his home country.
Particulars
a.Subparagraph 9(b) of the Directions requires the Tribunal to consider 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.
b.At paragraph 39 of its Decision Record, the Tribunal acknowledged that the Applicant has provided evidence of social, direct family and financial ties to his home country.
c.In the same paragraph, the Tribunal considered there was no significant incentive for the Applicant to return to his home country.
d.In so doing, the Tribunal failed to have regard to or place appropriate weight on the Applicant's evidence regarding his personal ties to his home country.
The applicant also filed an affidavit sworn 6 October 2020. That affidavit refers to factual matters, confirms that the hearing held before the Tribunal was conducted by telephone and states that the applicant is aggrieved by the decision.
The applicant first appeared before the Court on 18 June 2021. He did so without legal representation. Unfortunately, the interpreter who had been engaged to assist the applicant failed to appear. The Court determined that the applicant could not participate without an interpreter and, accordingly, adjourned the hearing until 22 September 2021. On that date, the applicant again appeared without legal representation. He was, however, assisted by an interpreter in the Dzongkha language. The Court thanks the interpreter for her considerable assistance throughout the hearing of this matter.
At the hearing of this matter, the Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that he was not satisfied with the quality of the interpretation services at the hearing before the Tribunal. Specifically, he told the Court, he believes the interpreter did not adequately convey his submissions to the Tribunal. Further, the applicant was concerned that the Tribunal focussed “too much” (noting [37] in the Tribunal’s decision) on the fact that “one day prior to the expiry of the tourist visa [the applicant] applied for a student visa”. Finally, the applicant stressed that his migration agent had failed to properly advise him of his rights and obligations and, as a result, he failed to give the Tribunal all of the material that it needed.
Following that hearing, the Court identified an issue that had not been canvassed in Court. That issue related to whether, in this matter, the Tribunal infringed the principles articulated by Chief Justice Allsop in Eros v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1061 (“Eros”). In that regard, the Court called a directions hearing to discuss this issue. Unfortunately, the applicant did not attend. In the circumstances, the parties were each given a chance to file further written submissions addressing the issues raised in Eros. Submissions were received from the Minister on 13 October 2021. The applicant provided further written submissions to the Court by email on 27 October 2021. Those submissions addressed issues raised by the applicant previously but did not address the principles outlined in Eros.
CONSIDERATION
Ground 1
Ground 1 provides:
Ground One
1. The Tribunal made a jurisdictional error by failing to provide the Applicant procedural fairness as required by section 360 of the Migration Act 1958 (Cth) (the Act).
Particulars
a. Section 360 of the Act relevantly provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments to the issues arising in relation to the decision under review [emphasis added].
b. At paragraph 4 of the Tribunal's decision record, the Tribunal provided that it exercised its direction to hold the hearing by telephone.
c. By holding a telephone hearing, the Tribunal denied the Applicants the opportunity to provide and be assessed by the Tribunal on all aspects of their evidence including body language, focus, facial expressions and demeanour.
d. In so doing, the Tribunal failed to provide the Applicants procedural fairness as required by section 360 of the Act.
The applicant’s main concern here appears to be that the Tribunal “could not see him”. He claims, in effect, that s 360 of the Act requires that he be given a “face to face hearing”. Telephone hearings, he suggests, do not ensure procedural fairness.
Section 360(1) of the Act provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Contrary to what the applicant seems to be arguing, the right to “appear” before the Tribunal does not require that the Tribunal physically “see” the applicant. The Act itself makes this quite clear. Relevantly, s 366 of the Act provides (emphasis added):
(1) For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
An “appearance” can be occur by way of telephone. There is no “requirement” that the Tribunal be able to see the applicant.
There is no dispute that the applicant “appeared” before the Tribunal via telephone. The Tribunal confirms this at [4]. The applicant (by particular (c)) appears to be suggesting that it was unreasonable or unfair for the Tribunal to have the hearing by telephone as the Tribunal did not then have the opportunity to assess his “body language, focus, facial expressions and demeanour”.
In the invitation sent to the applicant (the “hearing invitation”), the Tribunal explained (CB 80):
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.
In the response to the hearing invitation, the applicant ticked “no” in response to the following question (CB 91):
C. Do you believe that you or another person will experience difficulty participating in the hearing by telephone or videoconference or the hearing cannot be conducted by telephone or videoconference?
The Tribunal hearing lasted for forty minutes. At no time does the Tribunal record that the applicant or his migration agent had any issue with the hearing proceeding in by way of telephone. Further, the migration agent’s post-hearing submissions do not raise any issue with the matter proceeding by telephone.
The applicant does not appear to have ever advised the Tribunal that, in his view, conducting the hearing by telephone would disadvantage or prejudice him. Instead, he expressly agreed to the matter proceeding via telephone.
There is also nothing to suggest that the applicant was (or became) confused, disadvantaged or prejudiced by the Tribunal proceeding via telephone. The applicant refers to losing the opportunity to impress with his “body language, focus, facial expressions and demeanour”. There is simply no evidence in this regard.
Overall, the applicant gave brief responses to the questions asked of him (see, for example, [12] and [25]-[26]), he did not add or change anything in the response he provided to the invitation to provide information (see, for example, [13]) and, when asked if he had anything further to say, he responded that he was “intent on study doesn’t have anything to say” (at [28]).
The applicant’s evidence merely confirmed information that the applicant had already provided. It did not add anything. Accordingly, “any assessment” of the applicant’s body language, focus, facial expressions and demeanour would be of no weight in any event. This was not a matter which turned on credibility. It turned on the Tribunal’s subjective appraisal of whether the applicant’s intentions were genuine. The Tribunal determined that the evidence before it indicated that those intentions were not genuine.
There is nothing before the Court to suggest that that assessment was in any way prejudiced by the fact that the hearing was conducted via telephone.
In circumstances where the Tribunal was not conducting face to face hearings, the applicant did not object to the matter proceeding by telephone, there was no adverse view taken of the applicant’s credibility by the Tribunal and the Tribunal has a statutory objective to conduct a quick, fair and just review, it was entirely reasonable and fair for the matter to proceed by telephone.
No error arises in this regard. Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
Ground Two
2. Further or alternatively, the Tribunal made a jurisdictional error by failing to provide the Applicant procedural fairness.
Particulars
a. At paragraph 4 of the Tribunal’s decision record, the Tribunal provided that it exercised its direction to hold the hearing by telephone.
b. The telephone hearing was conducted with the assistance of an interpreter.
c. During the hearing, the Applicant experienced difficulties in understanding and interpreting the Tribunal's statements.
d. The failure to fully understand and interpret the Tribunal's statements was due to the Tribunal's decision to conduct the hearing by telephone and not in person as required by section 360 of the Act.
e. In so doing, the Tribunal denial the Applicant procedural fairness.
Again, it is not in dispute that the Tribunal conducted the hearing via telephone. Nor is it disputed that the applicant was assisted by an interpreter.
As outlined above, the applicant did not object to, or raise issues with, the matter proceeding by telephone either prior to, during or after the Tribunal’s hearing. He was also represented by a migration agent. Had any concerns arisen, it is expected that the migration agent would have sought to raise this with the Tribunal either during or soon after the hearing.
The applicant claims that he found it difficult to understand and have the Tribunal hearing interpreted and that this arose because of the Tribunal hearing proceeding via telephone.
In relation to any concerns about procedural unfairness arising from “poor interpretation”, the Court notes the Minister’s written submissions dated 25 May 2021 at [20]-[22]. Those submissions accurately stress that whether there is “inadequate interpretation” of the sort that results in an unfair hearing depends on the particular circumstances of the case: SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (“SZRMQ”) at [5]. Importantly, where interpretation services are relied on, those services must be adequate to “convey the substance of what is said” to an applicant so that he or she can “communicate the substance or his or her case and to respond to issues raised”: Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at [28]. Further, it is crucial that the essential elements conveyed by an applicant are ultimately received by the Tribunal: SZRMQ at [90].
Here, the applicant must establish (as per SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109) that he was “effectively prevented from giving his evidence” or that “errors had occurred in translation which were so material as to cause the decision-making process to miscarry”: WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29].
Again, there is no evidence here that the applicant raised any issue during or after the Tribunal hearing with the quality of the interpretation or his ability to participate. The applicant has not provided a transcript of the Tribunal hearing to demonstrate that either he or the interpreter was confused, disadvantaged or prejudiced by the matter proceedings via telephone: SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 at [27]. There is nothing on the face of the Tribunal’s decision to suggest that the applicant experienced any difficulties understanding the interpreter. Indeed, the Tribunal noted that it had put questions to the applicant and he had responded.
Ground 2, for these reasons and the reasons given in ground 1, is dismissed.
Ground 3
Ground 3 provides:
Ground Three
3. The Tribunal made a jurisdictional error in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) for Student visa applications by failing to have regard, as required by paragraph 9 of the Ministerial Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa applications (Direction), to the following factors in considering whether the applicant has reasonable reasons for not undertaking study in his home country.
Particulars
a. Subparagraph 9(a) of the Directions provides decision makers should assess whether the applicant has reasonable reasons for not undertaking the study in their home country.
b. The Tribunal failed to have regard to the Applicant's reasons for not undertaking the course of study in his home country.
The applicant argues that the Tribunal failed to consider [9(a)] of Direction 69 which provides:
9. When considering the applicant’s circumstances in their home country decision makers should have regard to the following factors:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant
Here, the Tribunal recorded as follows:
18. As to the availability of similar courses in his home country he stated “There are hardly any colleges that teach these English courses at this level. Most of the English is learnt at schools and not after. For example English proficiencies are not taught much in Bhutan. IELTS is at most the one taught which is only for a few weeks.”
The Tribunal expressly acknowledged the applicant’s evidence in relation to [9(a)] of Direction 69.
It is true that the Tribunal did not make any finding as to whether it accepted that the applicant could not study a similar course in Bhutan. However, the need to make a finding or identify what weight it put on this factor was unnecessary. This is so because a finding of greater generality subsumed the need to do so: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [47].
Here, the finding of greater generality which subsumed the need to consider whether there was a similar course in Bhutan was the finding that the value of the course itself did not have a realistic prospect of providing significant value to the applicant’s future beyond the qualifications he already holds (at [45]). That finding implicitly rejected the need to demonstrate that the course could not be studied in Bhutan.
Accordingly, ground 3 is dismissed.
Ground 4
Ground 4 provides:
Ground Four
4. The Tribunal made a jurisdictional error in relation to assessing the genuine temporary entrant criterion at Schedule 2 of the Regulations for Student visa applications by failing to have regard, as required by paragraph 9(b) of the Direction, to the following factors in considering the applicant's personal ties to his home country.
Particulars
a.Subparagraph 9(b) of the Directions requires the Tribunal to consider 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.
b.At paragraph 39 of its Decision Record, the Tribunal acknowledged that the Applicant has provided evidence of social, direct family and financial ties to his home country.
c.In the same paragraph, the Tribunal considered there was no significant incentive for the Applicant to return to his home country.
d.In so doing, the Tribunal failed to have regard to or place appropriate weight on the Applicant's evidence regarding his personal ties to his home country.
In this ground the applicant refers to [9(b)] of Direction 69, which provides:
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:
Relevantly, the Tribunal noted as follows:
39. The Tribunal has considered the applicant's circumstances in his home country. The applicant is married and is from Bhutan. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. When considering the applicant's circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to Bhutan, however, given the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Bhutan.
The Tribunal has clearly considered paragraph [9(b)] in the above paragraph. The Tribunal considered the applicant’s ties and found that they were an incentive to return. However, they were not a “significant” incentive. In circumstances where, as the Tribunal noted, the applicant’s intended period of stay in Australia was a further three years, it was entirely open to the Tribunal to conclude that the applicant’s ties to Bhutan did not represent a significant incentive.
Ground 4 is, accordingly, dismissed.
Otherwise
Tribunal’s assessment of the evidence
As noted above, in oral submissions the applicant stressed that he was concerned that the Tribunal focussed “too much” on the timing of his visa application. Although not entirely clear, the applicant appears to refer in this regard to the Tribunal’s findings at [37], which provide (emphasis added):
37.Whilst not diminishing the applicant's evidence given both orally and in writing, his circumstances can be summarised as follows. He completed a Bachelor of Arts Degree in his home country and then has worked as a language teacher at a secondary school since 2016. He apparently has some association with a monastery in his home country. He arrived in Australia on 11 February 2019 as the holder of a tourist visa. His intentions in travelling to Australia remain unclear notwithstanding he was asked to explain. One day prior to the expiry of the tourist visa he applied for a student visa, on 14 May 2019. He did not touch upon this in his oral evidence or in his undated narrative statement. It is tolerably clear that at the time of applying for the student visa he intended to study several vocational marketing and communication courses. These will occupy him until at least 12 May 2023. It appears that he has leave of absence from his teaching position for two years. His former employer has offered him better employment, as a teacher, when he returns. The applicant has not explained the relevance or utility of vocational courses in marketing and communication to his employment as a teacher. However the courses are asserted to be of some relevance to his role at the monastery, apparently he seeks to engage in fundraising activities for the benefit of the monastery. Although in other documents he refers to an intention to start his own business but does not state the nature of that business.
To the extent that the applicant is suggesting that that the Tribunal here has attached “too much weight” to the “timing issue”, the Court disagrees. It is clear that this finding was but one of many that lead the Tribunal to conclude that the applicant was not a genuine temporary entrant as per the guidelines provided in Direction 69. This issue is not highlighted as the only issue or, indeed, as a central issue. It is but one aspect of the evidence before the Tribunal upon which it was entitled to reference and attach weight as it saw fit: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. There is no illogicality or unreasonableness in the approach taken here.
Conduct of Migration Agent
Further, to the extent that the applicant now raises concerns about the conduct of his migration agent, while the Court is sympathetic to the concern of all applicants who express frustration with what they perceive to be poor migration advice, the concerns raised here do not assist the applicant in relation to the issue of jurisdictional error. There is nothing, for example, that leads the Court to conclude that the agent’s conduct amounts to a fraud on the Tribunal: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
In so far as the applicant has concerns about the advice he was given by his agent, the Court refers him to the services of the Office of Migration Agents Registration Authority. Unlike this Court, that entity is legislatively empowered to investigate and address migration services in Australia.
Whether the Tribunal’s decision is “Eros affected”
As noted above, the Court drew the parties’ attention to the decision of Chief Justice Allsop in Eros – a judgment which assessed whether the Tribunal in that matter correctly applied cl 500.212(a) of the Regulations.
The Court asked the Minister and the applicant to provide written submissions outlining whether Eros applied to the facts of this case.
By way of background, and as previously summarised by this Court in Solanki v Minister for Immigration & Anor [2020] FCCA 2918 (“Solanki”); Shoji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1920 and Singh v Minister for Immigration and Anor [2020] FCCA 2799, in Eros, the Tribunal had found as follows:
30.The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. In our view, the applicant has an intention to remain in Australia, at least while her daughter is here, but she did not articulate a lawful means of doing so outside of the student visa program. It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia. (emphasis added).
On appeal to the Federal Court, Chief Justice Allsop found that the Tribunal's finding was that the appellant intended to remain in Australia “while her daughter is here”". The available evidence was that the appellant's daughter would remain in Australia “for a period of two years” (i.e., a finite period of time).
The Federal Court’s comments specific to cl 500.212(c) of the Regulations were as follows:
[22]…There is no finding (though there are hints) that Ms Eros is not a genuine applicant to stay as a student. To make that finding the Tribunal would have to deal with other considerations beyond the intended length of stay, and evaluate her evidence including the fact, if it is the case, as it appears to be, that Ms Eros has dutifully undertaken the various courses that she has enrolled in, and, if it be the case, that she genuinely wants to do the courses.
…
[26]…If the kind of reasoning that is revealed by the Tribunal and the primary judge is to found the visa refusal, there has to be a treatment of the material whether by way of findings or conclusions as to the lack of satisfaction concerning matters such as whether the person is a genuine student or intends to undertake a course of study. That is, relevant findings or consideration need to be made or undertaken, based on considerations made relevant by subcl 500.212(c), to the effect that the chapeau is not met. That was not done. Matters were hinted at. But the reasoning was based on Ms Eros not intending to stay temporarily, when the factual finding was such that she was intending to stay temporarily.
As explained by this Court in Solanki (at [53] and [54]), Chief Justice Allsop noted further that while the Tribunal had indicated that it had “concerns” that the appellant was using the student visa process to maintain ongoing residence, this was only a “concern”. It was not a finding. The Tribunal's finding was that the appellant's intention to remain in Australia was for a definitive period of two years (as that was how long the daughter would remain in Australia). While there were certainly matters that may have suggested otherwise, the Tribunal (the Chief Justice determined) did not make that finding. Chief Justice Allsop determined that the Tribunal had, in the circumstances, erred as it had “asked itself the wrong question” and, in doing so, had failed to reveal “a rational and intelligible solution” for arriving at its conclusion that the appellant did not meet cl.500.212(a) of the Regulations.
In this matter, the Court has again queried whether the Tribunal in this matter fell into a similar error. In that regard, the Court noted that the following paragraph in the Tribunal’s decision that, arguably, stood out as “problematic”:
50.The Tribunal does give weight to the evidence that since the applicant's arrival in Australia on 11 February 2019 the applicant has spent more than 16 months in Australia and no time outside of Australia which indicates that he does not appear to have strong personal ties to Bhutan. The Tribunal acknowledges that the applicant's wife and child and other members of his immediate family reside in his home country. Further that he appears to have assets in his home country. However he intends to stay in Australia and study until 12 May 2023. Based on this evidence the Tribunal assesses the applicant's incentive to return to Bhutan to be reasonably evenly balance
This paragraph needs to be read in context. As explained by the Minister (in further written submissions filed on 13 October 2021 at [9]), a “common sense and realistic approach should be taken to understanding the Tribunal’s reasons as a whole when determining what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] per Allsop J).
In this matter, the relevant “context” shows that the Tribunal made a number of unequivocal conclusions based on evidence that supported the Tribunal’s ultimate finding that the applicant did not “genuinely intend to remain in Australia temporarily”.
Relevantly, the Tribunal found as follows:
47.The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
…
51.On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant's intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant's circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
52.On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.
The Tribunal then concluded:
55.On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
In that context the Court agrees with the Minister that the Tribunal’s reference to “12 May 2023” is not a finding of fact that the applicant genuinely intends to stay in Australia and study only until 12 May 2023. As explained by the Minister (in further written submissions filed on 13 October 2021):
9…. What the Tribunal is doing in that paragraph of its decision is summarising and engaging with the applicant’s evidence, part of which was a stated intention to remain in Australia to study until 12 May 2023, to determine the strength of the applicant’s ties to his home country. Effectively what the Tribunal is saying in that paragraph is that the strength of the applicant’s claimed familial ties to his home country needs to be assessed by reference to the fact that, by his own evidence, he proposes to live in a different country than his family for over four years.
10Support for the above construction of [50] comes from the first four words of the next sentence in the paragraph (“Based on this evidence…”), as well as the fact that the Tribunal went on to make findings about the applicant’s intention that were inconsistent with it having accepted that the applicant’s intention was to remain in Australia temporarily and until a fixed date ([51]-[52], [54]-[56]). The same can be said of these aspects of [39], [40] and [45] of the Tribunal’s reasons, which paragraphs also precede the Tribunal’s determinative findings at [51]-[52] and [54]-[56] as to the applicant’s intention concerning the length of his proposed stay.
The Court agrees.
Here, the Tribunal’s conclusions differ to those of concern in Eros. Here, the Tribunal determined, without doubt, that the applicant was using the visa as a means of maintaining ongoing residence in Australia (and not for a temporary period of time – as was the case in Eros).
The Court also notes the following ‘concern’ expressed by the Tribunal in the final sentence of [54]:
54.The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
Unlike in Eros, the “concern” expressed in this matter is not “problematic”. In Eros, the Chief Justice recognised (at [22]) that concerns about an applicant’s purpose can be relevant to cl 500.212(a) of the Regulations “if they inform a clear finding that the applicant intended to stay indefinitely in Australia”. That is what the Tribunal has done here. The ‘concern’ expressed at [54] is part of the reason for the Tribunal’s unequivocal finding (expressed at [55]) that the applicant does not genuinely intend to remain in Australia temporarily. No similar, unequivocal finding existed in Eros. In effect, the “concern” expressed in Eros simply “floated” without any connection to a firm conclusion about whether the applicant intended to leave the country.
In light of the express adverse findings made by the Tribunal in this matter, the Court is satisfied that the Tribunal has not erred in assessing cl 500.212(a) of the Regulations. Having rejected the evidence and arguments that the applicant advanced, the Tribunal’s statement at [55] that it was not satisfied that the applicant intended to genuinely stay in Australia temporarily was open to be made and did not involve any misunderstanding of its statutory obligations.
CONCLUSION
The applicant has failed to identify any jurisdictional error. The Court has otherwise been unable to identify jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 2 November 2021
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