FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to his appeal.

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellant appeals from a judgment of the Court below which dismissed his application for judicial review of a decision of the Tribunal which had affirmed decisions of a delegate of the Minister to refuse to grant Child (Migrant) (Class AH) visas to his two sons.

2    For the reasons that follow I would dismiss the appeal.

Some relevant background

3    The visa applicants are citizens of Afghanistan who were born in 1993 and 1995. They are of Hazara ethnicity. They fled Afghanistan with their family over the border into Pakistan to the Hazara enclave within Quetta, Pakistan. There they completed their secondary schooling. In June 2017 the two visa applicants were then deported back to Afghanistan.

4    On 19 December 2017, an application for the visas was lodged on their behalf by the appellant who sponsored their application. The appellant is an Australian permanent resident holding a Protection (Subclass 866) visa.

5    Now the visa applicants had to meet a range of criteria in order to be granted the visas; see ss 31(3) and 65(1)(a)(ii) of the Migration Act 1958 (Cth). Relevantly, this included satisfaction of the criteria in cl 101.213, schedule 2 of the Migration Regulations 1994 (Cth). That criteria had to be met at the time of their application. Clause 101.213 at the relevant time stipulated the criteria to be:

(1)    If the applicant has turned 18:

(a)    the applicant:

(i)    is not engaged to be married; and

(ii)    does not have a spouse or de facto partner; and

(iii)    has never had a spouse or de facto partner; and

(b)    the applicant is not engaged in full-time work; and

(c)    subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

(2)    Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

6    Clause 101.221 was also applicable and set out criteria that had to be met at the time of the decision with respect to their application. It relevantly provided:

(1)    In the case of an applicant who had not turned 18 at the time of application, the applicant:

(a)    continues to satisfy the criterion in clause 101.211; or

(b)    does not continue to satisfy that criterion only because the applicant has turned 18.

(2)    In the case of an applicant who had turned 18 at the time of application:

(a)    the applicant:

(i)    continues to satisfy the criterion in clause 101.211; or

(ii)    does not continue to satisfy that criterion only because the applicant has turned 25; and

(b)    the applicant continues to satisfy the criterion in clause 101.213.

7    On 3 December 2018, a delegate of the Minister refused to grant the visas. In form, separate decisions were made with respect to each visa applicant. The delegate found that neither visa applicant satisfied cl 101.213(1)(c).

8    On 21 December 2018, the appellant sought review of the delegate’s decisions before the Tribunal. A combined application for review was lodged by the appellant.

9    On 2 March 2021 a hearing was held by the Tribunal. On 11 March 2021, the Tribunal affirmed the delegate’s decisions. The Tribunal found that neither visa applicant had satisfied the criterion in cl 101.213(1)(c).

10    The Tribunal found that there was no evidence that the visa applicants were incapacitated for work and the Tribunal was not satisfied that they were dependent children within the subparagraph (b)(ii) definition of “dependent child” in reg 1.03.

11    The Tribunal found that the presented evidence confirmed that each of the visa applicants had engaged in study since high school and the Tribunal was satisfied that they did so. But the Tribunal found that the appellant’s evidence indicated that none of the visa applicants’ study was on a full-time basis and that none of their study following the completion of secondary schooling led to formal qualifications.

12    The Tribunal was not satisfied that the visa applicants had, since turning 18 years of age, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional trade or vocational qualification. The Tribunal was not satisfied that the visa applicants met cl 101.213(1)(c) and cl 101.221(2)(b).

13    Further, there was no suggestion that the visa applicants were adopted children and they did not meet the requirements for the grant of an adoption visa in subclass 102. Moreover, as they were sponsored by their father and there was no suggestion of his incapacity, and both visa applicants were over the age of 18 years of age at the time of application, the Tribunal found that they did not meet the definition of orphan relative and the requirements for the grant of a subclass 117 visa.

14    In summary, the Tribunal found that the criteria for the grant of a subclass 101 visa were not met.

15    On 15 April 2021 the appellant lodged an application for judicial review of the Tribunal’s decision in the Court below.

16    On 18 November 2021, the primary judge dismissed that application. The appellant now appeals that dismissal.

The present appeal

17    The present appeal turns primarily on the construction of cl 101.213(1)(c), which was a criterion for the grant of the visas that the visa applicants sought, and the question of whether that criterion could be satisfied by the facts applicable to them.

18    Now at the hearing before me the appellant sought leave to rely on his amended notice of appeal, which leave I granted.

19    It is convenient to set out the amended grounds of appeal before proceeding further.

20    Ground 1 contends that the primary judge erred in the construction of cl 101.213(1)(c), and consequently erred in finding that the visa applicants could not satisfy that provision. It is said that the primary judge erred in finding that cl 101.213(1)(c) required that a visa applicant be enrolled in a full-time course of study at the time of the application. It is said that the intention of cl 101.213(1)(c) to provide an applicant with a reasonable time to enrol before becoming ineligible for a subclass 101 visa is inconsistent with the construction adopted by the primary judge.

21    Ground 2 is to the effect that the primary judge erred in failing to find that the Tribunal had asked itself the wrong question in considering the evidence regarding educational opportunities in Pakistan and Afghanistan, alternatively, erred in failing to find that the Tribunal had misconstrued and therefore failed to deal with the appellant’s claims regarding the situation in Pakistan.

22    The appellant says that the Tribunal set an effective threshold of demonstrating that it was impossible for the visa applicants to enrol in the relevant kind of study, as opposed to demonstrating only that it was reasonable for them not to have enrolled in such study up to the time of the visa application.

23    Further, the appellant contends that the Tribunal erred in its conception of the scope of the appellant’s claims regarding the situation for his sons in Pakistan, with the result that the primary judge erred by failing to find that the Tribunal erred in its consideration of the appellant’s claims.

24    It is said that the Tribunal failed to appreciate that the appellant’s evidence was that it was not safe or reasonable for his sons to venture beyond the immediate vicinity of their home, as opposed to Hazara Town as a whole.

25    Now the appellant accepts that if the construction of cl 101.213(1)(c) adopted by the primary judge is correct, then this precludes the Tribunal’s decision from being quashed for jurisdictional error.

26    Accordingly, the appellant must succeed on both the construction question and either limb of his second ground of appeal to be entitled to the relief that he seeks.

27    Let me begin with ground 1.

Ground 1 – Alleged misconstruction of cl 101.213(1)(c)

28    Now I have already set out cl 101.213(1) at the relevant time.

29    Each of the visa applicants had turned 18 at the time of their visa application, both met the criteria in sub-cl (1)(a) regarding a spouse and neither was engaged in full-time work as required by sub-cl (1)(b). So the question was whether they met sub-cl (1)(c).

30    Now the appellant’s case before the Tribunal was that the visa applicants had not been reasonably able to engage in full time tertiary study since the completion of their secondary schooling, due to the dangerous circumstances for them, first in their local neighbourhood within Hazara Town, Quetta, and later, following their deportation, in their home area of Jaghori, Afghanistan.

31    Now in the material before the Tribunal it was established that the applicants and their family faced persecution as members of the Hazara minority ethnic group and lived in the midst of sectarian conflict. One of the applicants’ brothers had been killed in a suicide bombing in Quetta in 2010 and another had gone missing in 2013 and never been seen again.

32    Those events coincided with the completion of the older visa applicant’s secondary schooling at the end of 2011 and the younger visa applicant’s schooling at the end of 2013.

33    The appellant’s evidence before the Tribunal also referred to the fact that his sons, as undocumented Afghan refugees living in Pakistan, were always in constant danger of being deported back to Afghanistan. And indeed in June 2017 the visa applicants were both arrested by Pakistani authorities and deported back to Afghanistan as part of a crackdown on undocumented Hazara refugees by Pakistani authorities.

34    Now it was said that the grave dangers faced by the visa applicants imposed significant constraints on their capacity to engage in full-time post-secondary study. It was said that they undertook the studies that were reasonably available to them in those constrained circumstances, including English and computing courses, which were funded by the appellant.

35    But the appellant does not challenge the Tribunal’s finding that the courses in which his sons were enrolled did not meet the requirement of being full-time courses leading to formal qualifications.

36    But the appellant contends that as it was not reasonable in the visa applicants’ circumstances to expect the visa applicants to undertake such studies, they were still within “a reasonable time” before they were required to commence the relevant study.

37    It is said that on a proper construction of cl 101.213(1)(c), the visa applicants were capable of satisfying that criterion on the basis that they were still within a reasonable time after completing their secondary education to commence full-time post-secondary study.

38    Let me elaborate on the appellant’s arguments.

39    The construction accepted by the primary judge placed emphasis on the abridged phrase “has […] been undertaking” within cl 101.213(1)(c), to mean that unless study of the specified sort had already been commenced by the time of the visa application, the criterion could not be satisfied. But the appellant contends that the ellipsis, as he described it, in that expression conceals the intention in the Regulations that there be a grace period for school leavers to commence full-time post-secondary study before becoming ineligible for the visa. It is said that that intention is the reason for the words being inserted between the words “has” and “been undertaking”. And so the phraseology:

… the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

40    The appellant contends that on the construction adopted by the primary judge, a person’s eligibility for the visa would be:

(a)    up until the person turns 18 – eligible to apply;

(b)    from the day the person turns 18, or from the day they finished secondary school, for the next 6 months (or reasonable time), until full-time tertiary study commences – ineligible to apply; and

(c)    from the day full-time tertiary study commences – once again eligible to apply.

41    Accordingly, so the appellant contends, a person who turned 18 whilst completing secondary school would immediately become ineligible to apply for a subclass 101 visa on the last day of school, despite the manifest intention of the Regulations to allow a grace period for such a person to commence full-time study before ceasing to be eligible for the visa. The appellant says that such an absurd result would defeat the purpose of the 6 months or reasonable time grace period.

42    Instead, so the appellant contends, the construction that supports the clear purpose of the grace period is that cl 101.213(1)(c) is satisfied where the applicant has already commenced full-time study, or where the period for doing so has not yet expired.

43    Of course I accept that the construction of cl 101.213(1)(c) that would best achieve the evident purpose of the provision should be preferred as s 15AA of the Acts Interpretation Act 1901 (Cth) requires.

44    The appellant says that the purpose of cl 101.213(1)(c), which has been accepted by courts (Opoku-Ware v Minister for Immigration and Border Protection (2015) 297 FLR 416 at [79] and Sok v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FMCA 190 (Sok FMC) at [23] and [24]), is to recognise that a person over the age of 18 may be regarded as still genuinely dependent on his or her parents, and to provide a path to a subclass 101 visa for persons in that situation. The appellant also lightly touched on a departmental policy document that was said to reflect this purpose.

45    The appellant says that consistent with that purpose, a person who has not yet commenced full-time post-secondary study but is still within a reasonable period to do so, having regard to that person’s circumstances, and is not married or in a de facto relationship and not working full-time, is still genuinely dependent and within the class of persons intended to be eligible for the visa.

46    The appellant says that the insertion of the words “within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system” between the words “has” and “been undertaking” reflects a clear intention that a young person be considered eligible for the visa, because they are still genuinely dependent on their parents, even where there is a reasonable period after the completion of secondary school before the person commences full-time post-secondary study.

47    Moreover, the appellant says that this is not a provision where the ordinary grammatical meaning of the provision is unambiguous. It is said that the insertion of the words granting a grace period between the words “has” and “been undertaking” qualifies the requirement that would otherwise be dictated by the provision.

48    Further, the appellant says that even if the ordinary grammatical reading of the phrase was unambiguous, notwithstanding the insertion of the grace period, that would not preclude a construction that supports the obvious purpose of the provision but departs from the literal or grammatical reading. Of course I accept that departure from the literal or grammatical meaning may be justified where the adoption of such a meaning would lead to a result that is absurd, unreasonable or anomalous, provided that the alternative construction is reasonably open.

49    The appellant says that given the absurd, unreasonable and anomalous result of the construction of cl 101.213(1)(c) adopted by the primary judge on the basis that it was consistent with the plain language of the provision, the preferred construction of cl 101.213(1)(c) is that a visa applicant can satisfy that criterion if full-time post-secondary study has already commenced, or if a reasonable time to commence such study has not yet expired.

50    Now a number of authorities were discussed by the primary judge in relation to the construction question, including Sok FMC, Sok v Minister for Immigration and Citizenship [2007] FCA 413 (Sok FC), Opoku-Ware, Minister for Immigration and Citizenship v Henschel [2013] FCCA 584 and Nguyen v Minister for Immigration and Border Protection [2016] FCCA 2373.

51    But as the appellant correctly points out, other than Sok FC, all of those authorities were from the then Federal Circuit Court and its predecessor.

52    In Sok FMC, the then federal magistrate quashed the Tribunal’s decision and remitted the matter to the Tribunal. Sok FMC held that the phrase “reasonable time” must have regard to the circumstances of the applicant. But as the applicant in that case had already commenced post-secondary study, the relevant question in the present case was not in issue. Kenny J’s decision on appeal in Sok FC related to the new Tribunal decision made following that remittal.

53    In Sok FC, the Tribunal’s decision was held to be affected by jurisdictional error because of the manner in which the Tribunal had conducted the hearing, including the failure to convene a further hearing. In that case, the appellant had commenced studies two years after completing secondary school, and the question before the Tribunal was whether that delay constituted a “reasonable time”. The question of whether a visa applicant could satisfy the criteria before commencing post-secondary study, if a reasonable period had not yet expired, was not in issue in that case.

54    Kenny J in obiter commented on the meaning of “undertaking” in contrast with the phrase used by the Tribunal, “actively participating”. In that context, her Honour proceeded from the assumption that the post-secondary study was underway, consistent with the facts of the case before her. But that discussion has no bearing on the present case, and in any event formed no part of the ratio in that case.

55    Now the two cases on which the primary judge relied to support her construction were Opoku-Ware and Henschel.

56    In Opoku-Ware, the applicant had commenced post-secondary study by the time of the application, and was found to have satisfied cl 101.213(1), but had completed the course by the time the Tribunal came to make its decision, and therefore did not satisfy the time of decision criterion in cl 101.221(2)(b). The consideration of the primary judge in that case of the phrase “has been undertaking”, which was without reference to the qualifying words between “has” and “been”, at [75] to [82] of Opoku-Ware did not consider the different situation where study had not yet commenced.

57    In Henschel, in which the visa applicant was not represented and did not appear, the primary judge found that the course needed to have commenced by the time of application, and that the Tribunal had asked itself the wrong question by inquiring whether the delay was reasonable. The appellant says that that construction is not consistent with the statutory purpose of providing a grace period before commencing and should not be followed.

58    Generally, the appellant has invited me to put these authorities to one side. I accept that invitation.

59    In summary, the appellant says that the construction that supports the purpose of the provision and avoids absurd and anomalous results should be preferred. Accordingly, it is said that the primary judge erred in her construction of cl 101.213(1)(c).

Analysis

60    Now I would reject this ground of appeal.

61    In the present case, the visa applicants have never commenced at any point a course of study that was full-time in duration or which led to the award of a professional, trade or vocational qualification.

62    So, at the time of the visa application, they cannot have “been undertaking” a full-time course of study for the purposes of cl 101.213(1)(c). They could also not have continued to meet cl 101.213(1)(c) (as required by cl 101.221(2)(b)) in circumstances where they could never have met cl 101.213(1)(c) in the first place. Here, the applicants did not and could not, on the Tribunal’s findings about the nature of the courses that were undertaken, meet cl 101.213(1)(c).

63    Now it was argued before the Tribunal and again before the primary judge that the applicants could satisfy cl 101.213(1)(c). It was said that a “reasonable time” had not passed for them to commence full-time study leading to a professional, trade or vocational qualification, as it was not reasonable for them to have engaged in such study whilst they lived in Quetta, Pakistan, from 2011 to June 2017, and Jaghori, Afghanistan, from July 2017 to the Tribunal’s decision in March 2021.

64    But in my view her Honour’s reasoning and conclusion is correct. On a proper construction of cl 101.213(1)(c) and cl 101.221(2)(b), the visa applicants could not, on their own evidence and the findings of the Tribunal, have satisfied those clauses.

65    The Tribunal accepted that the visa applicants had “engaged in study since completing high school” (at [23]), being those courses referred to at [16] and [17] of its reasons. But the Tribunal did not accept that the visa applicants had engaged in full-time study, or that the courses that they did undertake were ones leading to the award of a professional, trade or vocational qualification (at [23] and [24]). Those findings were not challenged before the primary judge.

66    Accordingly, the visa applicants had never commenced studying a course or courses that could meet the criterion in cl 101.213(1)(c). The words “been undertaking” mean what they say. The visa applicants have never been undertaking a relevant full-time course of study. The relevant word is “been” which is a past participle. And the phrase “has … been undertaking” can be thought of as the present perfect continuous tense. That use and context is clear. The appellant seeks to re-write it. Now true it is that there is the optionality of a “reasonable time after …”. But that is comfortably fitted within the present perfect continuous tense “has … been undertaking”.

67    Now statutory construction must begin and end with a consideration of the text. And the language which has actually been employed in the text of the legislation is the surest guide to legislative intention. Moreover, extrinsic material cannot displace the clear meaning of the text.

68    Clause 101.213(1)(c) requires that:

the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study...

69    “Undertaking”, in this context, means engaging in, entering upon or participating in a full-time course of study.

70    And as I have said, as the phrase “has … been undertaking” is used in the present perfect continuous tense, that tense denotes an action that has already commenced and is ongoing. And such an interpretation is consistent with the plain reading of cl 101.213(1)(c). Clause 101.213(1)(c) requires that the visa applicants must have actually commenced a full-time course of study by the time of the visa application is lodged. The clause identifies when the study must have commenced, that is, “since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system”.

71    The clause is drafted to permit study or its penumbra such as enrolment or other preliminary steps to commence within a time period, for example, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system. But the study or its penumbra must have commenced. To construe it otherwise is to re-write “been undertaking”.

72    Now whilst cl 101.213(1)(c) identifies when study must have commenced, which is the appellant’s so-called grace period, the existence of such a time period does not logically mean that the clause therefore captures a person who has never commenced the requisite study as in the present case. In other words, the existence of a so-called grace period to commence studying does not deny the need to have actually commenced studying or its associated penumbral activities, the boundaries of the latter of which should be considered realistically in the context of the particular case. Otherwise, the person has not “been undertaking” study at all, as that phrase is ordinarily understood.

73    Further, the study must be ongoing at the time the visa application is made (cf. the heading to the clause). It is a “time of application” criterion. Moreover, the visa applicants must still be undertaking study at the time of the decision; see cl 101.221(2)(b). Moreover, it is difficult to understand how a visa applicant could meet cl 101.221(2)(b) (“continues to satisfy the criterion in clause 101.213”) if they had never commenced study at all, even up to the time of decision.

74    In summary, the action of studying must have commenced by the time of application and the visa applicant must be studying at the time of the decision. The decision-maker is required to look at the time period from the visa applicant commencing study within cl 101.213(1)(c) until the time of the decision and ask whether the visa applicant’s conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period. But I should note that it is not necessary for visa applicants to have been continuously involved in study without pause from the time they commenced that study until the time of decision.

75    Let me deal with some other points.

76    First, cl 101.213(1)(c) must not be read in isolation. The words “subject to subclause (2)” appear at the commencement of cl 101.213(1)(c). Clause 101.213(2) relates to a dependent child who has turned 18 and is incapacitated on account of total or partial loss of bodily or mental functions. It reads:

Paragraph (1) (c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

77    “[D]ependent child” is defined in reg 1.03. It reads:

dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

(a)    has not turned 18; or

(b)    has turned 18 and:

(i)    is dependent on that person; or

(ii)    is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

78    So, the drafters of cl 101 turned their minds to and identified the circumstance where the requirement in cl 101.213(1)(c) does not apply to a visa applicant and so that applicant does not need to have been undertaking study of the sort identified in cl 101.213(1)(c).

79    Now had the drafters of cl 101 intended that the scenario raised by the appellant, that is, that there were no study options reasonably available to the applicants where they were living such that a reasonable time for commencing the study described in cl 101.213(1)(c) had not passed and the clause did not apply to them, one would have expected the drafter to also have included that exception, as they did for cl 101.213(2). But no such exception was included. It would seem that the drafters intended that the only circumstance in which the requirement in cl 101.213(1)(c) did not apply was that stated in cl 101.213(2).

80    Second, as the Minister pointed out, the appellant’s argument may leave cl 101.213(2) with little work to do. Assume, as the appellant says, that cl 101.213(1)(c) has no application to a visa applicant where a reasonable time to commence study has not yet passed. But a visa applicant who is incapacitated due to a loss of physical or mental function, which is the circumstance in cl 101.213(2), would, it seems, likely be in a position where it is not reasonable for them to commence study, possibly ever. So, such a person would fall within the appellant’s construction of cl 101.213(1)(c). Accordingly, there would be no apparent need for cl 101.213(2).

81    Third, there is nothing absurd that arises from the primary judge’s construction. It just reflects a legislative choice that for a child who is over 18 to be eligible for a “child” visa, that person actually needs to have been undertaking the relevant study. A child who is 18 is prima facie considered to be independent. But as cl 101.213(1)(c) makes clear, if a person over 18 is studying after they have finished school and in the manner identified in that sub-clause, the relationship of dependence may continue. But a person who has not commenced studying full time is not still necessarily dependent, and may be able to work, especially in circumstances like the present case where the period without study is many years in respect of each of the visa applicants.

82    I agree with the Minister that there is nothing absurd in cl 101.213(1)(c) not being satisfied by a person who has never commenced studying. The drafters included only one express carve-out from cl 101.213(1)(c). It is not apparent why it is an absurd result for a person who simply has not undertaken any study of the type in cl 101.213(1)(c) at all to not be eligible for the visa. That just reflects the drafter’s choice that only certain persons over the age of 18 satisfy cl 101.213.

83    Further, insofar as the appellant refers to a period of ineligibility between turning 18 or finishing school and actually then commencing full-time study, there is no anomaly sufficient to depart from the plain words of the clause. Any such period is likely in most cases to be short. Further, if the applicant has actually enrolled in a course meeting the requirement of cl 101.213(1)(c) but the course start date has not yet arisen, that would still constitute the person as “undertaking” a course of study. So, they would be eligible for the visa.

84    Now the appellant has also identified the purpose of the sub-clause by reference to a departmental policy document which was put forward as relevant extrinsic material, albeit faintly. But care must be taken with identifying a purpose from such a document and then using that to drive the construction of a legislative provision. And more generally, one should not just state a purpose and then construe the statute to coincide with that purpose. The correct process is to deduce the purpose from the legislative text read in context, rather than from assumptions about the apparently desirable operation of the provision.

85    Let me conclude my discussion by making a few general points.

86    I do not have a situation of a manifest drafting error in a provision where the addition of words or the omission of words may be justified as consonant with both the context of that provision and the apparent legislative purpose.

87    There is no grammatical error in cl 101.213(1)(c), let alone one which would defeat the object of the provision if strictly construed. Indeed, the appellant’s construction would inject grammatical infelicity rather than cure it. Moreover, his construction would not involve an addition or omission of words but rather a non-grammatical reading of the existing words.

88    Moreover, even if the appellant’s modified construction is consonant with the object of the scheme enshrined in the Regulations, that is not sufficient to endorse it. In my view it does not sit with a plain reading of the text. The appellant’s construction engages in over-reach.

89    I can express the matter no better than to adopt the pithy phrase of Gageler and Keane JJ (albeit in dissent) in Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531 at [65] that “[c]onstruction is not speculation, and it is not repair”.

90    In summary, ground 1 must be rejected. Strictly then, it is not necessary to consider ground 2 since to succeed on the appeal it is a necessary but not sufficient condition that the appellant succeed on ground 1. But in case I am wrong, let me turn to that topic.

Ground 2 – Whether the Tribunal imposed an artificially high standard and/or failed to engage with the appellant’s claims

91    Now the Tribunal implicitly accepted the construction of cl 101.213(1)(c) contended for by the appellant, being that the criterion can be satisfied if a reasonable time to commence full-time post-secondary study has not yet expired. And on the foundation of that construction, which both the primary judge and I have found to be incorrect, the Tribunal considered whether in the visa applicants’ circumstances the reasonable time to commence full-time study had expired.

92    Now in relation to the time spent by the visa applicants in Pakistan, after completing secondary school and before being arrested and deported to Afghanistan, the Tribunal accepted that the situation in Pakistan was very unsafe and that the combination of that situation and the family’s circumstances would have impeded the visa applicants’ ability to travel and enrol in certain institutions.

93    The appellant’s evidence before the Tribunal was that after one of his sons had been killed in 2010 and another gone missing in 2013, it was not safe for his two remaining sons, the visa applicants, to venture beyond their immediate neighbourhood within Hazara Town, Quetta. If they ventured to the city centre or the bazaar, he said that they would be deported back to Afghanistan. As it transpired, that is what happened in 2017. For that reason, the appellant had ensured that the visa applicants had enrolled in a course at a vocational provider in the same road as the family home. The appellant’s representative’s submission to the Tribunal stated that “Mr Khan felt he had no choice but to limit the lives of his remaining children to their immediate surrounds in Hazara Town.”

94    But the appellant says that the Tribunal effectively imposed a threshold of requiring proof that it was impossible, as opposed to unreasonable, for the visa applicants to engage in any study in Hazara Town other than the courses they actually enrolled in.

95    More generally, it was said that the Tribunal’s dispositive finding was that it was not prepared to accept that there was no other study possible in Hazara Town or Jaghori, Afghanistan (at [33]).

96    Now the appellant says that in framing the question in that manner, the Tribunal asked itself the wrong question and misconstrued the meaning of what was reasonable in the specific circumstances of the visa applicants.

97    Now before the primary judge the Tribunal’s engagement with the appellant’s evidence about the circumstances and study opportunities in Pakistan was the subject of the first judicial review ground. The evidence about the circumstances and study opportunities in Afghanistan was the subject of the second judicial review ground below.

98    The primary judge dismissed the first judicial review ground on the basis that it was a matter for the visa applicants to satisfy the Tribunal of the issue concerning the availability of study opportunities in Pakistan (at [49]). But in so finding, the appellant says that her Honour erred in failing to find that the Tribunal was asking itself the wrong question by applying a threshold that required the appellant to prove the complete absence of alternative study opportunities anywhere in Hazara Town. I should say here that it is not completely clear to me that the argument put to me was identical with that put to the primary judge, but I will deal with it.

99    Furthermore, it is said that her Honour erred in failing to find that the Tribunal’s approach was framed by a misapprehension of the appellant’s evidence. The appellant’s case was that it was not safe and therefore not reasonable for the visa applicants to travel beyond their immediate surrounds in Hazara Town. But the appellant says that the Tribunal’s misapprehension that the relevant area was the entirety of Hazara Town made a material difference to its assessment. Again it is not clear to me that there is complete correspondence between the argument put to me and that put to the primary judge.

100    In relation to the second judicial review ground, the appellant says that the primary judge correctly found that the Tribunal had failed to give proper consideration to the appellant’s evidence regarding study opportunities in Afghanistan. I should note here that this is the subject of a notice of contention filed by the Minister.

101    The primary judge held that the absence of any reference to the list of technical institutions in Afghanistan, which had been provided to the Tribunal and indicated, so the appellant says, that none of the institutions were in Jaghori, was indicative of a failure to evaluate and understand the appellant’s claims.

102    But ultimately the primary judge found that the error established by the second judicial review ground was not material for two reasons.

103    First, the construction of cl 101.213(1)(c) adopted by her Honour, with which I agree, meant that the visa applicants could not in any case have satisfied that visa criterion when they had not enrolled in a full-time course of study.

104    Second, it would also have been necessary to find error in both the Tribunal’s reasoning in relation to the time spent living in Pakistan, which was not found by the primary judge, as well as error in the Tribunal’s reasoning concerning the time spent living in Afghanistan, which was found by the primary judge, to have then made a difference to the Tribunal’s determination affirming the delegate’s decisions concerning each visa applicant.

105    But the appellant says that the reasoning of the primary judge in relation to both judicial review grounds failed to grapple with the necessary preliminary issue of whether the Tribunal was actually assessing the correct question, that is, reasonableness rather than impossibility.

106    Further, and as I have said, the appellant says in relation to the first judicial review ground that her Honour failed to address the fact that the Tribunal had misunderstood the appellant’s claim to be that it was not safe and reasonable to study anywhere in Hazara Town, whereas his actual evidence was much more confined.

107    The appellant says that either of these last two points is sufficient for the appeal to succeed, provided that the appellant’s construction of cl 101.213(1)(c) is accepted.

Analysis

108    Now as should be apparent from what I have said, in order for the appellant to demonstrate jurisdictional error by the Tribunal, he had to succeed on the construction point concerning cl 101.213(1)(c) as well as at least part of ground 2 of his appeal.

109    Further, he had to demonstrate that the Tribunal fell into error in relation to both Pakistan and Afghanistan. If the appellant only succeeded in relation to one country, the Tribunal’s non-satisfaction as to the visa applicants’ claim that “a reasonable time” had not passed, would remain in relation to the other country considered. As such, it would remain that the visa applicants would not have satisfied the Tribunal and would not have demonstrated that the “reasonable time” to undertake the requisite study had not yet commenced.

110    Let me proceed on the assumption that the appellant had succeeded on the construction point, which of course he has not.

111    Now the appellant’s argument before the Tribunal was that it had to consider whether a reasonable time had passed since the visa applicants’ secondary studies to allow them to commence a course that fell within the description in cl 101.213(1)(c). And it was contended before the Tribunal that in their particular circumstances a reasonable time had not yet passed for them to enrol in such a course.

112    In my view, the Tribunal’s reasons fairly read show that it understood that this was the argument being mounted by the appellant. The Tribunal discussed the circumstances relevant to whether a reasonable time had passed that were being advanced by the appellant. And the Tribunal accepted many of the matters that were advanced.

113    One circumstance considered by the Tribunal was the access to educational courses that the visa applicants had or did not have in Pakistan and Afghanistan. The appellant contended before the Tribunal that educational and study courses were not available to the visa applicants. Clearly that was a matter that the Tribunal considered, given the appellant’s arguments and also given that the visa applicants had not been enrolled in a relevant course for 7 and 9 years respectively, calculated from the time they turned 18 to the time of the Tribunal’s hearing, but were nevertheless still saying that a reasonable time extended even beyond such a lengthy period.

114    Now if there were courses available to the applicants in Pakistan and/or Afghanistan which satisfied cl 101.213(1)(c), that is, full-time courses leading to a qualification, but the applicants had failed to undertake them, then that was a relevant factor to an assessment of whether a reasonable time for commencing study had not passed.

115    I agree with the Minister that the Tribunal did not require the appellant to prove the complete absence of courses or the impossibility of enrolling in study. Rather, the appellant himself put in issue the non-availability of educational and study opportunities. And so the Tribunal’s reasons reflect how the argument was put.

116    Now it is for an applicant to advance their arguments and evidence in support, and for the Tribunal to decide whether the claim is made out. If the applicant does not provide evidence that satisfies the Tribunal of their claims, the result may be that the Tribunal does not find the relevant criterion to have been satisfied.

117    Now the Tribunal stated (at [28]) that:

…The review applicant has not presented sufficient evidence, in the Tribunal’s view, about the options that may (or may not) have been available to the visa applicants…

118    Further, the Tribunal stated (at [33]):

The Tribunal has found that the visa applicants had not engaged in full-time study leading to specified qualifications since completing high school in 2011 and 2013 respectively. The Tribunal accepts the review applicant’s evidence that there would have been circumstances affecting their ability to engage in further study, most significantly the security situation in Pakistan and later Afghanistan, the treatment of Hazara and Shia, general access to education in their home region, inability to travel and other factors. The Tribunal accepts the entirety of the review applicant’s evidence concerning these matters. Nevertheless, the Tribunal has formed the view that the review applicant has not presented adequate evidence to establish what (if anything) would have been available to the visa applicants. The Tribunal is not prepared to accept the review applicant’s assertion that there was no other study possible in Hazara Town or in Jaghori. While that is entirely possible, such claims need to be supported by probative evidence and the evidence that was presented by the review applicant was general in nature and, in the Tribunal’s view, insufficient to positively satisfy the Tribunal about the visa applicant’s lack of access to full-time formal education. The Tribunal has placed weight on the fact that the visa applicants did engage in studies since completing high school and their ability to undertake English and later computing courses at least suggests a possibility that other study was available. The Tribunal does not make a positive finding that other study would have been possible for the visa applicants and it is not for this Tribunal to make such a finding. There is not enough evidence to find that there was other study but, more importantly, there is not enough evidence to find that other (formal, full-time) study was not available. It is for the review applicant to satisfy the Tribunal that the visa applicants meet the visa criteria and the Tribunal has formed the view that the he has not presented sufficient evidence to satisfy the Tribunal that this is the case.

119    So, the Tribunal was not satisfied of the appellant’s claims, given the quality of the evidence advanced as to the availability of study opportunities. I agree with the Minister that this was not to impose some rigid standard that the appellant could only succeed if he proved that study in any relevant course was impossible.

120    I do not agree with the appellant that the Tribunal failed to assess the reasonableness of the visa applicants not having commenced study. The Tribunal was simply not satisfied, given the inadequacy of the appellant’s evidence, that his claim that a reasonable time had not yet passed was made out.

121    Let me deal with the second matter raised by the appellant.

122    The appellant contends that the Tribunal misapprehended the appellant’s case and evidence, because the appellant’s case was that it was not safe for the visa applicants to travel beyond their immediate surrounds in Hazara Town. But it is said that the Tribunal misapprehended that the relevant area was the entirety of Hazara Town.

123    But in my view no such error is apparent.

124    It is convenient to set out the Tribunal’s reasons at [28]:

The Tribunal accepts that the visa applicants may not have been able (or felt able) to safely travelled outside of Hazara Town. However, the Tribunal considers the presented evidence insufficient to establish to the satisfaction of the Tribunal that there were no other study opportunities in the area where the visa applicants resided or where they could travel safely. It may be that the English study was the only opportunity available to them in their place of residence, but it is also possible that there were other courses, perhaps full-time courses or more formal study, that were also available. It may be possible that the visa applicants could have attended more than one course in their local area to make up the full-time study. The review applicant has not presented sufficient evidence, in the Tribunal’s view, about the options that may (or may not) have been available to the visa applicants. A broad statement that the situation locally was unsafe (and the Tribunal accepts these submissions in their entirety) is not sufficient to establish that the visa applicants could not engage in full-time study or study leading to a formal qualification.

125    The Tribunal accepted (at [28]) that the visa applicants may not have been able, or felt able, to travel safely outside Hazara Town. It then referred to “the area where the visa applicants resided or where they could travel safely”, their “place of residence”, and their “local area” (at [28]).

126    In my view, the words used by the Tribunal do not suggest that it misunderstood the appellant’s evidence or case. Fairly read, the Tribunal was commenting on the local area in which the visa applicants lived. That was not an erroneous approach.

127    Now given these conclusions, I do not need to consider the Minister’s notice of contention concerning evidence relevant to what I will describe as the Afghanistan period. But it is convenient to do so.

128    As I have indicated, the appellant relies on the primary judge’s finding that the Tribunal erred in relation to its assessment of Afghanistan. The error was said to be that the Tribunal did not refer in its reasons to and ignored a particular list provided by the appellant to the Tribunal. But the Minister disputes that finding of error.

129    Now the appellant contended before the Tribunal that there was an unavailability of formal post-secondary education in their home region of Jaghori, Afghanistan. One piece of country information relied on by the appellant was a list of 102 vocational and technical institutions in operation in Afghanistan prepared by the National Statistics and Information Authority of Afghanistan.

130    The appellant’s migration agent enclosed a copy of this list with a post-hearing submission to the Tribunal. The agent submitted that none of those institutions were located in the Ghazni province.

131    Now this list was not expressly referred to by the Tribunal in its reasons. But that is not sufficient to show jurisdictional error. In BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 at [13], Colvin J said:

Further, the fact that the Tribunal has not mentioned particular information does not necessarily mean that it has ignored, overlooked or misunderstood and thereby not considered that information: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [54] (Bromberg, Jackson and Feutrill JJ). The case must be made as to why it is said that the fact that reasons do not contain an express reference to a substantial or clearly articulated argument or to refer particular relevant facts or materials demonstrates that the argument or the facts or materials have been ignored, overlooked or misunderstood. Mere disagreement with the process of reasoning or the implied rejection of the significance of an argument or evidence by not expressly referring to it in the reasons does not demonstrate jurisdictional error.

132    The Tribunal is not obliged to refer to every piece of evidence before it. It is not required to give a “line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal”, but must “give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence” (Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [48] and [49] per Besanko, Barker and Bromwich JJ, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65] to [67] per McHugh J).

133    Moreover, the non-reference does not necessarily lead to an inference that it was not considered at all, although it may lead to such an inference depending on the context. But non-reference to something may also support an inference that it was not considered to be material to the Tribunal’s decision.

134    But I accept what was said in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 by Kenny, Griffiths and Mortimer JJ at [49] and [50]:

The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf at [10], [44], [69].

We do not accept the Minister's submission. The Tribunal's reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

135    Now in relation to the list, which was provided to the Tribunal after the hearing attached to a 14 page letter titled “post-hearing submissions”, the Minister made three points which in my view were of substance.

136    First, although the appellant’s submission was that none of the institutions in the list were located in Ghazni province, Items 57, 58 and 59 refer to an Agriculture Institute, Management and Accounting Institute and a Technical Institute in Ghazni. The applicants were located in Ghazni province. Further, many of the other entries on the list do not include the location of the institute. In summary, the list does not demonstrate that there were no institutions in Ghazni.

137    Second, the list appears to relate to 2018 as its heading indicates, but the visa applicants were in Afghanistan from June 2017 and the Tribunal’s decision was in March 2021. The Minister says that the list does not, on its face, speak to what institutions existed in 2017 or 2019 and onwards, and accordingly what possibilities may have been available to the visa applicants in those years. Now the Minister’s statement is literally true, but it is reasonably likely that most of these institutions existed before 2018, and most continued to exist after 2018. But I do accept the possibility that some existed in 2017 and not beyond, and so would not appear on the list, and others came into existence after 2018. And so there was the possibility of other institutions in Ghazni but outside 2018 that did not appear on the list.

138    Third, the appellant’s agent asserted that the list was a complete list of institutions operating in Afghanistan. But the basis for that assertion was not stated. Moreover, the list records the number of teachers, graduates and students at the various institutions listed. But nothing on the face of the list itself indicates that it was an exhaustive list of every vocational and technical institution in Afghanistan.

139    Now the Tribunal’s reasons indicate that it had considered the country information before it.

140    Further, the Tribunal did expressly refer (at [31]) to the part of the appellant’s post-hearing submission in which he made contentions as to the unavailability of government funded, subsidised or accredited institutions. The list was referred to in the same section of that submission. In that context it is unlikely that the Tribunal simply ignored the list. And if it considered it, the above three points were likely to be apparent, although I accept that I am engaging in an element of speculation.

141    I am inclined to the view that the primary judge misunderstood the Minister’s case on these aspects (at [53]).

142    Moreover, let it be assumed that the Tribunal ignored or failed to consider the list. Determining whether a failure to consider evidence is a jurisdictional error requires an assessment of the importance and materiality of the evidence to the specific exercise of the Tribunal’s function. In my view the list was not sufficiently material given its clear deficiencies that any failure to consider it constitutes a jurisdictional error.

143    In summary I would uphold the Minister’s contention if it is necessary to do so.

144    But in any event, I have rejected ground 2 of the appeal.

Conclusion

145    For the foregoing reasons the appeal must be dismissed with costs.

Associate:

Dated:    12 May 2023