Federal Court of Australia

Sapkota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 91

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to tender and to rely on the annexures to the affidavit of Gerard Gleeson dated 24 November 2020.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals orders of the Federal Circuit Court made on 10 June 2020 by which his application to that court for judicial review of a decision of the Administrative Appeals Tribunal dated 29 June 2016 was dismissed. The Tribunal affirmed a decision under s 65 of the Migration Act 1958 (Cth) of a delegate of the Minister to refuse to grant to the appellant a Student (Class TU subclass 572) Visa as a secondary applicant to his wife. The principal reason for the Tribunal’s decision was that it was not satisfied that the appellant intended genuinely to stay in Australia temporarily, which was a criterion prescribed by cl 572.326 of Schedule 2 of the Migration Regulations 1994 (Cth), as in force at the relevant time.

2    The Minister resisted the appeal, and the Tribunal filed a submitting notice.

3    For the following reasons, the appeal will be dismissed.

Background

4    The appellant is a citizen of Nepal, who first arrived in Australia on 16 May 2009 as the holder of a Student (Class TU subclass 572) Visa that was valid until 3 September 2011. Subsequently, the appellant was granted a further student visa that was valid until 7 December 2014. During this period, the appellant completed a Diploma of Business, a Certificate IV in Business Management, Certificates III and IV and Diploma in Information Technology, and he undertook and later completed a Certificate III in Light Mechanical Technology. The appellant married his wife in Australia on 29 November 2014. On 5 December 2014 the appellant applied for the Student (Class TU subclass 572) Visa as a secondary applicant to his wife, and as a member of his wife’s family unit. At the time of the hearing before the Tribunal, the appellant’s wife was the holder of a student visa.

The delegate’s decision

5    On 20 February 2015, a delegate of the Minister refused the appellant’s application for a visa. The delegate considered that the appellant was required to engage the secondary criteria in cl 572.326 of Schedule 2 of the Migration Regulations 1994 (Cth) which provided that the Minister had to be satisfied that the appellant intended genuinely to stay in Australia temporarily –

572.326 Criteria to be satisfied at time of decision

The Minister is satisfied that:

(aa)    the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)    the applicant’s circumstances; and

   (ii)    the applicant’s immigration history; and

(iii)    if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)    any other relevant matter; and

…

6    The delegate’s reasons record that, given the appellant’s lack of academic progress, study history, potential circumstances in Australia, immigration history, and the lack of value of the courses undertaken to the appellant’s future, the delegate was not satisfied that the appellant was a genuine applicant for entry and stay as a student (albeit that the application was secondary to his wife’s application), nor that the appellant intended to stay in Australia temporarily.

7    The delegate also considered the appellant’s application against the requirements for other sub-classes of student visa, and determined that the appellant did not satisfy the primary or secondary criteria for those visas.

The Tribunal’s decision

8    The appellant applied to have the delegate’s decision reviewed by the Tribunal. The appellant attended a hearing on 8 June 2016 together with his migration agent, and the appellant and his wife gave oral evidence to the Tribunal. Following the hearing, the appellant provided a written statement to the Tribunal. On 29 June 2016, the Tribunal affirmed the delegate’s decision not to grant the appellant a student visa. The Tribunal was not satisfied that the appellant intended genuinely to stay in Australia temporarily, and therefore found that the appellant did not meet the requirements of cl 572.326(aa) of Schedule 2 of the Regulations. The Tribunal’s reasons for its decision may be summarised as follows.

9    At [8] of its statement of reasons, the Tribunal stated that the appellant sought to satisfy criteria as a secondary applicant on his wife’s student visa. At [9], the Tribunal framed the issue on the application as being whether the appellant met the criterion in cl 572.326(aa) of Schedule 2 of the Regulations, which I have set out above. The criteria in that clause were the subject of a Direction made by the Minister under s 499 of the Act: Direction No 53, Assessing the genuine temporary entrant criterion for Student visa applications. At [10] of its statement of reasons, the Tribunal referred in a summary way to the factors specified at [9]-[16] of Direction No 53 –

(a)     the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

(b)     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;

(c)    if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

(d)    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 Tribunal referred to the delegate’s decision, summarising the delegate’s conclusions as follows –

12.    As recorded in the delegate’s decision, a copy of which was supplied with the review application, the delegate considered that, on the basis of the applicant’s study history, overall lack of academic progress in his completion of only 6 courses out of 21 enrolments, his potential circumstances in Australia, his immigration history and the lack of value of his courses to his future, that he was using the student visa program to circumvent permanent migration programs and he was not satisfied that he is a genuine applicant for entry and as a student dependent visa holder or that he intends to stay in Australia temporarily.

11    In recounting the evidence given by the appellant and his wife at the hearing, the Tribunal at [17] referred to the question of the utility of the appellant’s mechanical qualifications if he returned to Nepal –

17.    The Tribunal observed that he had been in Australia for a long time and had not progressed academically. In fact his last course, a Certificate III, had been a regression and, combined with the timing of his marriage, it appeared he was using the student visa program to prolong his stay in Australia. He denied this was the case. He said when he came to Australia he had been confused about his courses. It was when he had worked in the auto shop he realised that he wanted to be a mechanic. He reiterated that when his wife finished her study he may continue his study. The Tribunal asked how this would improve his employment prospects in Nepal. He responded that there is not the variety of cars in Nepal as there is in Australia. When asked what remuneration he would expect to receive, he said his automotive studies were only for Australia. The Tribunal asked about the value of his IT qualification in Nepal. He said he thought it might help him. He said that his current boss told him that if he finished his qualifications he will sponsor him. At the moment he said he wants to help his wife while she completes her study. When asked what their plans were at the end of their courses, he said their plan was to stay in Australia to get better jobs.

12    The Tribunal at [29] and [30] referred to evidence of the appellant that he and his wife hoped to remain in Australia –

29.    With regard to the applicant’s potential circumstances in Australia, the Tribunal notes that he has been employed in an automotive workshop since 2012. His employer has provided a reference in this respect. In his oral evidence the applicant indicated that his automotive studies would be of little use to him in Nepal because there is not the same variety of cars as in Australia. In addition he claimed that his employer has offered to sponsor him. Although denied by his wife, the applicant also stated that he and his wife hoped to remain and work in Australia.

30.    Therefore, with regard to the applicant’s potential circumstances in Australia, the Tribunal considers that the applicant has strong incentives to remain. As confirmed by his oral evidence, he has employment in Australia. As noted above, it was his evidence at hearing, although denied by his wife, that they may choose to remain in Australia. He also claimed that they have many relatives in Australia.

13    The Tribunal’s reasons then addressed the relevant factors summarised in (a), (b) and (d) set out under [9] above. Under the heading, “The applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to the applicant’s future”, the Tribunal concluded at [32]-[34] –

32.    While the tribunal acknowledges that the applicant has not expressed any firm plans in this regard, his evidence was clear that he may seek to extend his stay in Australia for employment purposes and that his employer may sponsor him in this regard. The tribunal found the applicant to be a frank and credible witness and in this context gives greater weight to his evidence in this regard rather than that of his wife. The tribunal has taken into account the applicant’s later written statement, contradicting this evidence, however it attributes more weight to his frank and credible oral evidence at the hearing.

33.    On this basis the tribunal is not satisfied that the applicant genuinely intends to remain temporarily in Australia.

34.    While accepting that the applicant has family in Nepal that may represent an incentive for his return, when balanced against the low level of the unrelated courses he has undertaken, the length of time he took to complete them, and his acknowledgement that he may seek to remain in Australia, the tribunal considers that this indicates that he is using the student visa programme primarily to maintain residence in Australia until another or better option arises for him to remain.

14    Under the heading, “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”, the Tribunal concluded at [36]-[37] –

36.    In relation to his Australian immigration history, the Tribunal finds that the applicant arrived in Australia in May 2009 on a subclass 572 visa valid until 3 September 2011. It was granted on the basis of his plans to study business management. Up until December 2014, the applicant held student visas or bridging visas with study rights and had been in Australia for a period of over 5 years but at that stage had only completed a Certificate IV and Diploma in Information Technology. He was continuing to study a Certificate III in Light vehicle Mechanical Technology which he later completed but has cancelled his enrolment in a Certificate IV in Automotive Mechanical Diagnosis. In their evidence at hearing, both he and his wife indicated that he has done so in order to support her completion of her qualifications at which time he may recommence his study. Following the hearing the applicant provided a statement in which he said he did not plan to undertake any further study in Australia.

37.    On the basis of the above, the tribunal concludes that the applicant has no genuine intention to stay in Australia as a student.

15    Under the heading, “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”, the Tribunal concluded at [39]-[42] –

39.    As noted above, the Tribunal finds that the applicant has no intention to undertake any further study in Australia. In addition, over the course of his time in Australia, he regressed in the level of study he was undertaking. This, as well as his change to automotive studies from his planned business studies, and his acknowledgement that this course will be of little value to him in Nepal, all lead the Tribunal to the conclusion that he has undertaken these courses in Australia as a means of maintaining ongoing residence. That is, he is using the student visa program to prolong his stay.

40.    The Tribunal has taken into account his later statement that he wishes to return to Nepal because he has strong family ties there and his wife will be able to gain employment however, on the basis of the other oral evidence before it, and the vagueness (and lateness) of his stated aims in returning, the Tribunal gives these factors little weight in its considerations. The course in which the applicant’s wife currently has a confirmation of enrolment is not scheduled to be completed until 2018 and the Tribunal is not persuaded, for all the above reasons, including his current employment that the applicant does genuinely intend to depart at the end of this study.

41.    The Tribunal has considered the totality of the applicant’s circumstances, including his explanations and evidence, but finds that the fact of the applicant’s long period in Australia, his study history as the prior primary holder of a student visa, along with his expressed desire to remain in Australia, indicate that the student visa program is being used in the case of the applicant primarily to maintain residence in Australia and to circumvent the migration program.

42.    On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

The proceeding in the Federal Circuit Court

16    The appellant was unrepresented in the Federal Circuit Court. The primary judge recorded at [23] that at the hearing of the application before the Court the appellant appeared in person and that an interpreter in the Nepali and English languages was available to assist the appellant. Her Honour stated that the appellant informed the Court that he did not require everything to be interpreted, and that he was content to proceed on the basis that if he required something interpreted, he would make a request.

17    The appellant’s application to the Federal Circuit Court advanced three grounds of review –

1.    According to the tribunal the time of our courting was very short that is 3 months and that we married in a hurry because of my visa condition. In our [culture] the decision to get married is [solely] on our family and it is very common to get married in short period of time. The tribunal didn’t give any consideration to my cultural background while making this assessment.

2.    After carefully reading the refusal of Tribunal we came to realize that during the hearing a lot of things didn’t came across the way we wanted to say it. As our first [language] isn’t English and we didn’t keep an interpreter therefore [there] seem to have a lot of miscommunication.

3.    The tribunal is not very impressed with my immigration history. She has pointed out that I have not progressed academically and am using the student visa program to prolong my stay in Australia. I would like to point out that I have never breached any of my visa condition and have [completed] every course I have enrolled in.

18    At the hearing below, the appellant raised a further matter, being a claim that the Tribunal’s finding at [12] of its reasons (see [10] above) that he had completed only six of 21 enrolments was factually incorrect.

19    The primary judge did not find any jurisdictional error in the Tribunal’s decision and dismissed the appellant’s application. The primary judge’s reasons may be summarised as follows.

20    In relation to the first ground of review, her Honour held at [34]-[38] that the Tribunal did not make a finding that the appellant and his wife married for the reason of maintaining the appellant’s residence in Australia, and that the proximity of the marriage was not of any significance to its determination. The primary judge held that the appellant’s study and immigration history alone were sufficient to satisfy the Tribunal that the appellant did not have a genuine intention to remain in Australia temporarily. Accordingly, it was not necessary for the Tribunal to consider the cultural reasons for the appellant’s marriage.

21    In relation to the second ground of review, the primary judge did not accept that the absence of an interpreter before the Tribunal caused any denial of procedural fairness or any other jurisdictional error. The primary judge referred to the following in reaching that conclusion –

(1)    the Tribunal’s invitation to the appellant for the provision of an interpreter;

(2)    the appellant’s migration agent’s express indication that an interpreter was not required;

(3)    the lack of interjection from the appellant or his migration agent during the hearing as to communication issues, and the failure to raise such issues in the post-hearing written statement; and

(4)    a reading of the transcript of the hearing before the Tribunal as a whole did not demonstrate that the appellant was unable to participate and engage with the Tribunal in a meaningful way.

22    The primary judge also held that the Tribunal had erred in its finding that the appellant had completed only IT courses when the appellant had stated that he also completed a course in business. The documents in the court book before the primary judge included certificates that showed that the appellant had completed a Diploma of Business on 17 September 2010, and a Certificate IV in Business Management on 6 January 2010. However, the primary judge held that the error was of no material effect, stating at [57] –

57.    However, the Applicant is correct to note that the Tribunal finding at [36], that the Applicant was that he had only completed IT courses, was incorrect. Read as a whole, it is apparent that the Tribunal’s reference to the Applicant’s “prior study history” includes the matters referred to in [34], [36] and [39] and that the factual error in [36] is of no material effect. It was an error of fact within jurisdiction.

23    In relation to the third ground of review and the additional ground raised by the appellant, the appellant had submitted that by reference to records within a system known as a Provider Registration and International Student Management System (PRISMS) it was erroneous for the Tribunal to state at [12] of its reasons that he had completed six of 21 courses in which he had been enrolled, when the appellant had in fact completed eight of ten courses. Before the primary judge, the Minister accepted this error of fact, but submitted that the Tribunal had drawn on the delegate’s reasons for this information, that the PRISMS record was not before the Tribunal, and submitted that the misstatement was immaterial. The primary judge held at [69] that the Tribunal’s reference to the appellant having completed only six out of 21 enrolments was in the context of setting out the delegate’s findings, and that the Tribunal itself did not make that conclusion. The primary judge also held that, to the extent that the Tribunal found at [39] of its reasons that the appellant had “regressed” in his studies (see [15] above), this was not linked to the erroneous statement that he had completed only six out of 21 courses in which he had enrolled. The primary judge held at [74] that the Tribunal’s view was informed by the appellant’s study history generally, involving the type of course, the time it took to complete the courses, and the value of the courses, such that the incorrect statement did not have any bearing on the Tribunal’s consideration.

24    An additional matter was raised by the Minister before the primary judge. The Minister drew attention to the decision of the Full Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41, and raised the question whether the Tribunal had considered all the factors in Direction No 53 such as military service commitments, or political and civil unrest in Nepal, but submitted that the Tribunal had done so. The primary judge addressed the additional matter at [80], concluding –

80.    The fact that the Tribunal did not expressly address these matters is not conclusive of these matters not having been considered. The Tribunal responds to the case as put by an applicant. Here, the Applicant never put in issue or submitted to be relevant any military service commitments or the political and civil unrest in Nepal. As such, it was unnecessary for the Tribunal to make any express finding. It can be safely inferred that the Tribunal did not consider such relevant or material.

25    For completeness, I record that more recently Allsop CJ considered the criteria in cl 500.212 of Schedule 2 of the Regulations in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061. The text of cl 500.212 differs from cl 572.326 as formerly in force, and which is the subject of the present case. Amongst other things, the clause considered in Eros requires that the applicant, “is a genuine applicant for entry and stay as a student” (emphasis added). There are, however, similarities between the two clauses, as both raise the question whether an applicant intends genuinely to stay in Australia temporarily, and both require attention to similar disaggregated elements. As to those elements, Allsop CJ stated at [15] that, “[t]he clarity of structure of disaggregated elements to inform one overall evaluation demands separate attention to each element so that appropriate attention is given to relevant considerations, and so that appropriate focus is given to the relevant considerations”.

The appellant’s grounds of appeal to this Court

26    The appellant’s notice of appeal in this Court advanced two grounds, each accompanied by particulars, which I set out below verbatim –

Grounds of appeal

1.    The Federal Circuit Court erred in holding that the second respondent did not fall into jurisdictional error by not failing to properly consider matters as required in relation to the application.

Particulars

a.    The second respondent was required by Ministerial Direction 53 - Assessing the genuine temporary entrant Criterion for Student visa applications made pursuant to s. 499 of the Migration Act 1958 (Cth) to consider certain matters outlined in the Direction.

b.    The applicant’s study history was considered by the second applicant as part of the reason for finding that he was not a genuine temporary entrant.

c.    The second applicant’s decision in relation to this study history was informed by, among other things, the purported express indication [at 73] that the applicant:

i.    wished to remain in Australia; and

ii.    that the course he had undertaken was of no value to him in Nepal.

d.    The applicant did not make any such express indications, rather repeatedly stated that it wasn’t his intention to remain in Australia.

e.    The finding as to an express statement was jurisdictional error because it was not open on the facts and materially affected the outcome.

f.    A transcript will be filed prior to final hearing.

2.    In the alternative to ground 1, the Federal Circuit Court in holding that the second respondent did not fail to properly consider matters failed to take into account a relevant consideration and/or engaged in reasoning that was illogical, irrational or without evidence.

a.    The applicant did not make an express representation that he

i.    wished to remain in Australia.

ii.    that the course he had undertaken was of no value to him in Nepal.

b.    The applicant repeatedly stated that it was in fact not his intention to remain in Australia.

c.    The applicant provided written submissions after the hearing with the second respondent that both he and his wife would return to Nepal at the completion of her studies.

d.    In addition, the second respondent claimed various other statements were made by the applicant which are not to be found on transcript.

e.    The oral evidence of the applicant provided at the hearing with the second respondent was found to be “frank and credible.” Written submissions provided post-hearing were also accepted by the second respondent.

f.    The Federal Circuit Court in holding the second respondent’s findings engaged in jurisdictional error by:

i.    by giving weight to statements that were not made.

ii.    by failing to properly consider relevant and consistent evidence.

iii.    by giving weight to material that was flawed with the result that the finding required for the exercise of power was illogical and/or irrational and/or without evidence.

g.    A transcript will be filed prior to final hearing.

27    The gravamen of the appellant’s case before this Court on appeal was two-fold, in that it was claimed that –

(a)    the Tribunal had erroneously treated the appellant as having expressly accepted that he wished to remain in Australia, when the transcript and other material before the Tribunal did not support such an acceptance; and

(b)    the Tribunal was in error in treating the appellant as having acknowledged that the courses that he had undertaken would be of little value to him in Nepal.

28    Counsel for the appellant submitted orally that these errors amounted to jurisdictional error by the Tribunal.

Evidence on appeal

29    At the hearing of the appeal, I gave leave to the appellant to adduce and to rely on two items of evidence, without objection from the Minister. The first was a written transcript of the hearing before the Tribunal prepared by VIQ Solutions Inc, and provided to the appellant on 10 November 2020, together with the written order form for the transcript. The second was the audio recording of the Tribunal hearing of 8 June 2016 which VIQ transcribed. Counsel for the Minister accepted that the audio recording was authentic, and that the VIQ transcript was accurate. Although the VIQ transcript purports to be of a hearing before the Tribunal on 29 June 2016, this was in error and likely to have been caused by the incorrect date of hearing stated on the order form, which nominated the date of recording as 29 June 2016, which was the date of the Tribunal’s written decision.

30    The VIQ transcript differs from an Auscript transcript dated 8 June 2016 that was in evidence before the primary judge, in respects that the appellant submits are material. Counsel for the appellant placed reliance on the VIQ transcript in relation to some answers given by the appellant to questions put by the Tribunal where, it was submitted, material differences are apparent. The audio recording of the hearing before the Tribunal had been filed with the Federal Circuit Court pursuant to an order made 21 September 2017, to which the primary judge referred at [2] of her Honour’s reasons. However, the audio recording was not listed by her Honour in [3] as something to which she had regard. On my review of the material before the primary judge, and of the transcript of the hearing before her Honour, it does not appear that the recording was tendered, and counsel for the appellant accepted that it had not been tendered. The affidavit evidence before the Federal Circuit Court was that the Auscript transcript had been obtained by the solicitors for the Minister on 10 October 2017 based upon an audio recording that they had obtained from the Tribunal after the application before the Federal Circuit Court had been filed. It appears, therefore, that there was no occasion for her Honour to review the audio recording. Rather, the primary judge had regard to the Auscript transcript, being the only transcript that was before her Honour. For completeness, I record that counsel for the appellant accepted that the Tribunal did not have the Auscript transcript. It follows that no question of the Tribunal relying on any erroneous passages of the Auscript transcript arises.

31    Having regard to the Minister’s acceptance that the VIQ transcript is accurate, and in accordance with the leave I gave to the appellant to rely upon it, I shall evaluate the appellant’s submissions on appeal by reference to that transcript rather than the Auscript transcript. Given the parties’ acceptance of the accuracy of the VIQ transcript, I have given primary weight to it, although I have also listened to the audio recording of the Tribunal hearing while reading the VIQ transcript. In listening to the whole of the recording, I noted some minor transcription errors, but none that I consider to be material. I have noted in parentheses in the passages below some additional words that I picked up upon listening to the recording.

The appellant’s submissions

32    Relevant to both grounds of appeal is the following reference by the primary judge at [73] of her Honour’s reasons –

… the Applicant expressly indicated [to the Tribunal] that he wished to remain in Australia and that the courses that he had undertaken (and was most recently enrolled in) were of no value to him in Nepal.

33    Counsel for the appellant submitted by reference to the VIQ transcript that the appellant did not make any such express statements to the Tribunal. In support of that submission, counsel relied on the appellant’s responses to questions of the Tribunal in the following passages.

34    The first passage is the following question by the Tribunal together with the appellant’s response –

Q:    The number of enrolments you’ve had, the low completion level, all indicate that you’re maybe only enrolling for student for courses for the purpose of maintaining the residency in Australia. Is there anything you want to say about that and the fact of your marriage just at the end of your visa reinforces that impression, Is there anything you wanted to say about that, because the requirement that you have to meet or the requirement [on] which this application is being reviewed is a requirement that you have to genuinely intend to stay in Australia temporarily, and it seems to me that you want to stay here permanently and you’re doing whatever you can to stay?

A:    It’s not like that. Like, once [coming] to Australia I was a bit confused, [even] in my [like] areas what to do and like… I want to be a mechanic and that’s why I did this course and even my visa was refused [like even my visa was refused]. At the time I was doing my automotive, my visa was refused at the time of – maybe that was [refused] while I was doing my automotive but even I didn’t [withdraw my study] – I continued my study, as you can see, I have completed my Certificate III in Automotive [indistinct], like, it was not my intention to stay in Australia, getting married with my wife, it’s not like that.

(Emphasis added)

35    The Auscript transcript omitted from the appellant’s answer the words in bold that I have emphasised above, namely “not my intention to”.

36    Later, in response to another question by the Tribunal the appellant stated –

As I told you before, like, when I came to Australia [I was a bit…], I am not (indistinct) I was a bit confused about my careers and everything, that I was enrolling in [business and] the IT or something, but at the time I realised what I really want to do [was] this automotive, I want to [be] a [qualified] mechanic. That’s why I started studying this one. It’s like – [it] sounds like I want to stay in Australia [because] and - it’s not like that. I was a bit confused about my careers and everything, that’s why when I figured out that I really want to do this course [indistinct], that’s why - I continue [my] studies in mechanics.

(Emphasis added)

37    The words in bold that I have emphasised above, namely “it sounds like”, were omitted from the Auscript transcript.

38    At the conclusion of his evidence the Tribunal asked the appellant whether there was anything else that he wanted to say, in response to which he stated –

No. That’s all I have. All I can say is that it was not my intention to remain in Australia, just to – just by studying and just to stay here. We do have the visa [plans], we do have progress and everything, it’s not just- staying in Australia [indistinct]… it’s not right, it’s not true.

39    Counsel separately submitted that the appellant gave no express indication that the courses that he had undertaken in Australia were of no value to him on return to Nepal, and directed the Court to the following passages of transcript –

Q:    So in terms of your automotive work then, what sort of money do you earn in Australia and what sort of money would you earn in Nepal doing [that] job, for example?

A:    Like, in Nepal, like, we don’t have a variety of cars like here. It all depends upon the different mode of transport, like, you know, the horse, the cart and everything. We don’t depend- we don‘t use a lot of transport back in Nepal and [indistinct] the automotive is [for only] here. [Even] if I go back to my country, I can’t [indistinct].

40    Finally, counsel relied on a written statement dated 14 June 2016 that the appellant and his wife made to the Tribunal following the hearing. Included in that statement are the following –

I wish to be a dependent on my wife Roza on her current S/C 573 visa and we wish to stay in Australia until the completion of her course.

…

I have already finished my Certificate III in Automotive and was able to get a part-time job in the same field, I have no intentions to study further in Australia as I getting more practical learning and experience from working. Roza is currently enrolled in Bachelor of Business Community Services Management. On completion of her study, Roza will easily be able to get government job in the field of management of health sciences in Nepal as there is a great demand for her profession in Nepal. I wish return to Nepal with Roza after she finishes her bachelor degree.

41    As to the two grounds of appeal in particular, the appellant’s submissions are summarised as follows.

Ground 1

42    Counsel for the appellant submitted the primary judge had considered the Auscript transcript, but made no comment about having listened to the audio recording, or about sections of the Auscript transcript that appeared incomplete or not transcribed.

43    Counsel for the appellant submitted that whether the appellant intended to stay in Australia only temporarily was a jurisdictional fact that the Tribunal was required to consider. Counsel submitted in writing that –

What was articulated by the appellant as a clear intention not to stay indefinitely due to the situation with his wife was found to be effectively the opposite. The [Federal Circuit Court] erred by accepting the conclusion of the AAT and holding there was no misunderstanding. Where there is a failure to take into account relevant material, this in turn affects the exercise of power and can be an error of law.

44    In developing that submission orally, counsel submitted that to the extent that the Tribunal made a finding that the appellant had given an express indication that he wished to remain in Australia, that finding was not supported by the evidence recorded in the revised transcript, being the VIQ transcript, and that there was no consideration of those facts that were critical to a consideration of the question whether the appellant intended genuinely to stay in Australia temporarily.

Ground 2

45    Counsel for the appellant submitted in writing that the Federal Circuit Court had on review failed to consider relevant evidence or ignored relevant material, and in relation to the subject of Ground 2, the Federal Circuit Court engaged in reasoning that was illogical, irrational, or without evidence. The appellant made three points in this regard.

46    First, it was submitted that the appellant’s responses in the transcript were central to the Court’s assessment of his application and the review process, citing SZRKT v Minister for Immigration [2013] FCA 317; 212 FCR 99 at [111] (Robertson J), and the decision of the Full Court of this Court in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402. Second, the finding made by the primary judge as to the appellant’s intentions to remain in Australia was not supported by evidence because it was based on the erroneous Auscript transcript, and that finding was a critical step in the primary judge’s conclusion such as to give rise to error. Third, the primary judge failed to listen to the audio recording of the Tribunal hearing, which the appellant submitted was “essential” to consideration of the appellant’s intentions to remain in Australia.

47    There was some confusion about these submissions, and counsel for the appellant went so far as to submit in writing that the primary judge’s decision was affected by “jurisdictional error”, as the appellant had claimed in Ground 2(f) of the notice of appeal: cf, Craig v South Australia [1995] HCA 58; 184 CLR 163 at 176 (Brennan, Deane, Gaudron, Toohey and McHugh JJ). In oral argument, this aspect of the submissions was abandoned, and counsel accepted that on an appeal by way of rehearing the appellant did not need to demonstrate that the Federal Circuit Court had committed jurisdictional error, but only some error of fact or law.

48    Nonetheless, counsel submitted orally that in relation to whether the appellant had a genuine intention to remain in Australia temporarily, the Tribunal had made a jurisdictional error that was “the incorrect finding of fact that was material to the decision, which was adverse to the appellant”. In relation to the Tribunal’s reference to the utility to the appellant of his qualifications if he returned to Nepal, counsel submitted that the Tribunal’s statements at [39] of its reasons were not a fair summary of the evidence that had been given.

Consideration

49    The appellant’s case before this Court essentially amounted to a challenge to two key elements of the Tribunal’s findings of fact by reference to isolated passages of transcript and the appellant’s written statement that was provided to the Tribunal following the hearing. This challenge was wrapped inside a confusing claim alleging jurisdictional error by the Federal Circuit Court, but as I have mentioned, that aspect of the appellant’s case was abandoned.

50    I shall address the factual premises of the appellant’s arguments on appeal.

51    First, I do not accept that it was not open to the Tribunal to find, as it did, that the appellant had expressed a desire to remain in Australia. It was open to the Tribunal to consider that the appellant did so in the following exchange with the Tribunal that appears in the VIQ transcript which I have reviewed in conjunction with the audio recording –

Q:    What is her [your wife’s] career plan, do you know?

A:    She wants to be a nurse.

Q:    Do you know what she plans to do - what do you both plan to do when she finishes her qualification?

A:    Her plan was to finish her study and stay here to get a better job.

Q:    Is that still your plan?

A:    Yeah.

52    The Tribunal referred to the appellant’s evidence to this effect at [29]-[30] of its statement of reasons (see [12] above).

53    Second, the Tribunal at [32] of its statement of reasons (see [13] above) referred to the appellant’s evidence that he might seek to extend his stay in Australia for employment purposes, and that his employer might sponsor him, acknowledging that the appellant had not expressed any firm plans in that regard. That evidence was as follows –

Q:    What about your current employer? Has he indicated whether he might sponsor you for a visa?

A:    Yeah, he has some interest before, like, he was, like, at the time l was working, he said, like, “If you’ve got the qualifications, I can sponsor you”. That’s the reason I started studying this course, my IT, and at the time of, you know, at the time I get introduced to my wife and it was done in a different way.

Q:    So you had no plans to continue your automotive study?

A:    At the time, I want to support my wife for her to complete her study and I want to finish my automotive - that’s the reason I went to this visa.

54    Third, the Tribunal’s statement at [29] of its reasons that, “[i]n his oral evidence the applicant indicated that his automotive studies would be of little use to him in Nepal because there is not the same variety of cars as in Australia”, was open to it based upon the evidence of the appellant which I have set out at [39] above.

55    Fourth, for the above reasons, it was open to the Tribunal as part of its deliberative process to find that the appellant had expressed a desire to remain in Australia and to weigh that evidence together with the other circumstances to which it referred, against the appellant’s statement that he wished to return to Nepal, which the Tribunal stated at [40] of its reasons it had taken into account. It is clear that the Tribunal understood that there were competing statements and circumstances that fell to be resolved.

56    Fifth, there was, in my view, undue focus in the appellant’s case upon minor differences between the Auscript transcript and the VIQ transcript that counsel for the appellant submitted were material. However, upon a fair reading of the Tribunal’s reasons, the references to the appellant’s expressed desire to remain in Australia, and to the lack of utility of his automotive qualifications in Nepal, were based upon evidence recorded in the transcripts that was not the subject of any submissions alleging any inaccuracies. Therefore, the differences between the two transcripts on which counsel for the appellant relied are not material to the resolution of the grounds of appeal before this Court. For completeness, and as I foreshadowed at [30] above, contrary to the submissions of counsel for the appellant there was no occasion for the primary judge to consider differences between the Auscript transcript that was before her Honour, and the audio recording in respect of which no submissions were advanced before her Honour.

Conclusions

57    Both grounds of appeal must be rejected because their foundations have not been established. The Tribunal was not bound to accept the appellant’s statements in evidence and in writing that he and his wife would return to Nepal upon completion of his wife’s studies. Those statements fell to be considered by the Tribunal against all the circumstances, including other aspects of the appellant’s evidence before the Tribunal to which it referred. I am not persuaded that there was any error of law by the Tribunal in failing to be satisfied that the appellant intended genuinely to stay in Australia only temporarily, still less any error of the type considered by Robertson J in SZRKT v Minister for Immigration [2013] FCA 317; 212 FCR 99 that would be jurisdictional in nature. There was no error by the primary judge in dismissing the application for judicial review.

58    The appeal will be dismissed with costs.

Associate:

Dated:    12 February 2021