Bjeshka v Minister for Immigration - [2020] FCCA 1209

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJESHKA v MINISTER FOR IMMIGRATION

[2020] FCCA 1209

Catchwords:
MIGRATION – Application by fourteen (14) year old Albanian boy for a Student visa – non-compliance with cl. 500.212 criteria – no jurisdictional error established on the part of the delegate – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 338, 499.

Migration Regulations 1994 (Cth), Schedule 2, cl. 500.212.

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16.

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015]

HCA 50.

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant:

ARMANDO BJESHKA

Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number:

ADG 115 of 2020

Judgment of:

Judge Egan

Hearing date:

15 May 2020

Date of Last Submission:

15 May 2020

Delivered at:

Brisbane

Delivered on:

19 May 2020

REPRESENTATION

Solicitors for the Applicant:

Mr M. Simmons, Solicitor of MSM Legal

Solicitors for the Respondent:

Mr S. Cummings, Solicitor of Sparke Helmore

ORDERS

Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), the Applicant’s paternal uncle Arjan Bjeshka of 28 Swift Avenue, Dulwich in the State of South Australia is appointed as the litigation guardian of the Applicant.
Pursuant to rule 1.06 of the Rules, the requirement in rule 11.09(1) that the Applicant may only start an application by his litigation guardian is, nunc pro tunc, dispensed with.
Pursuant to rule 1.06 of the Rules, rule 11.13 providing for the notice to the First Respondent of the appointment of the litigation guardian for the Applicant is dispensed with.
The application for review filed on 12 March 2020 be dismissed.
The Applicant’s litigation guardian pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

IT IS NOTED THAT:

A.Arjan Bjeshka has filed an affidavit of consent to be appointed litigation guardian and does not have any known interest in these proceedings that is adverse to the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

ADG 115 of 2020

ARMANDO BJESHKA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a fourteen (14) year old citizen of Albania. He resides with his parents and two younger brothers.
On 23 January 2020, the applicant applied for a Class TU Subclass 500 Student visa. Three previous applications made by the applicant for such visa had been refused by the Department. The applicant had received notifications of refusal from the Department dated 23 November 2018, 5 December 2018 and 25 January 2019 respectively. [1]
[1] Annexures CF-1, CF-2 and CF-3 to the Affidavit of Catherine Follett filed on 8 May 2020.
As to the grant of the visa, Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) set out the relevant criteria as follows:
“500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.”
Such clause is known as the genuine temporary entrant criterion.
For the purpose of determining whether the applicant satisfied the criteria, it was recorded at page 2 of the delegate’s reasons for decision that the Department was required to consider the factors which should be taken into account as set out in Ministerial Direction No. 69 (‘the Ministerial Direction’) made pursuant to the provisions of s. 499 of the Migration Act 1958 (Cth) (‘the Act’). [2] The delegate appropriately summarised the factors which had to be taken into account as follows:
[2] Court Book (CB) p. 95.
·“the applicant’s circumstances in their home country, including the applicant’s economic situation, political and civil unrest in the applicant’s home country, the extent of the applicant’s personal ties to their home country, whether the applicant has sound reasons for not studying in their home country if a similar course is available, and military service commitments that would present as a significant incentive for the applicant not to return to their home country
·the applicant’s potential circumstances in Australia, including the extent of the applicant’s ties with Australia that present as a strong incentive to remain in Australia, evidence that the student visa program may be used to circumvent the intention of the migration program, whether the Student visa or the Student Guardian is being used to maintain ongoing residence, the applicant’s knowledge of living in Australia, and whether the primary and secondary applicants have entered into a relationship of concern
·the value of the course to the applicant’s future, including the course’s consistency with the applicant’s current education level, whether the course will assist the applicant to gain employment in their home country, relevance of the course to the applicant’s past or future employment in their home country or a third country, and remuneration and career prospects in the applicant’s home country or a third country to be gained from the course
·the applicant’s immigration history, including visa and travel history for Australia and other countries, previous visa applications for Australia or other countries, and previous travels to Australia or other countries
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant.”
After having set out the factors above, the delegate said as follows:
“Any other matter relevant to the applicant’s intention to stay in Australia temporarily must also be considered. These factors have been weighed up to make an overall decision.”
The delegate had earlier indicated that on the basis of all of the information available, the criteria for the grant of a Student visa had not been met by the applicant. In the preamble to the Ministerial Direction, it was recorded that the genuine temporary entrant criterion for Student visa applications required the Minister to be satisfied that the applicant intended genuinely to stay in Australia temporarily having regard to:
“a. the applicant’s circumstances; and
b. the applicant’s immigration history; and
c. if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.”
The Record of Responses document which accompanied the application for a Student visa recorded that the applicant was enrolled at an educational college, and that the confirmation of enrolment code the subject of the application was “B2006677”. [3]
[3] CB page 1.
The Overseas Student Confirmation of Enrolment (‘CoE’) bearing the code B2006677 recorded that the applicant was enrolled for ‘Junior Secondary Studies’ at the Mercedes College, Springfield, from 30 January 2020 until 9 December 2022 – namely three (3) years of study. The CoE also recorded that the initial pre-paid tuition fee was in the amount of AUD $12,000.00, and that the total tuition fee was in the amount of AUD $72,000.00. [4] A second CoE bearing code number “B2008839” purported to be a confirmation of enrolment for the applicant to attend Mercedes College for ‘Senior Secondary Certificate of Education’ from 3 February 2023 until 6 December 2024 – namely the final two (2) years of secondary schooling – at a further cost of AUD $48,000.00. [5] The relevance of such document was limited because it did not fall within the CoE code which was the subject of the visa application.
[4] CB page 55.
[5] CB page 56.
On 7 February 2020, a delegate of the Minister refused to grant the visa to the applicant on the ground that the delegate was not satisfied that the applicant intended genuinely to only stay in Australia temporarily. [6]
[6] CB page 96.
It was common ground that because the decision of the delegate was not a Part 5 Reviewable Decision, as defined in s. 338 of the Act, the applicant was not entitled to a merits review of the delegate’s decision. Accordingly, application was made for the review of the delegate’s decision to this Court.
The applicant relied upon two (2) grounds for review which were as set out in the originating application for review filed on 12 March 2020 as follows:
“Grounds of application
1. The delegate failed to consider, or given genuine and realistic consideration to, or make any finding with respect to all factors identified in Direction 69 which were the subject of clearly articulated claims by the applicant or appeared clearly from the material relied upon by the visa applicant.
Particulars
a. Direction 69 identifies what it describes as “factors” to which decision-makers “should” have regard when considering each of the broad categories of considerations identified in cl 500.212.
b. Where specific matters are relied upon by a visa applicant as relevant to the generally expressed considerations in cl 500.212, and are “the subject of substantial, clearly articulated claims made by the visa applicant”, or are “apparent on the fact of the material” before the delegate, the delegate is required to consider those matters: Kaur v Minister for Home Affairs [2019] FCA 2026
c. The delegate did not address each of the considerations expressly relied upon by the applicant.
d. In particular, the delegate erred in failing to consider, or give genuine and realistic consideration to, or make any finding in one or more [of] the following respects:
i. the applicant’s and his parents’ reasons for wishing to undertake the study om Australia rather than in Albania as relied upon in the evidence and submissions advanced on behalf of the applicant pursuant to cl 9(a) of Direction 69, namely:
1. his and his parents’ reasons for wanting him to study at an English language school in an English-speaking country;
2. their perception that the Australian education system is “so much better than the Albanian”’
3. the reasons provided as to why sending him to a bigger city within Albania would be less beneficial to him; and
4. the improved opportunities for the applicant to apply for a place and possibly a scholarship in Europe or the United States.
ii. the intentions of the applicant’s parents, as required under subpar (a)(iii) of cl 500.212 of Schedule 2 to the Migration Regulations and cl 15 of Direction 69 and as relied upon in the evidence and submissions advanced on behalf of the applicant
iii. the consistency of the proposed course of study with the applicant’s current level of education, as a factor pointing towards the genuineness of his intention to undertake the study and thus his intention to remain in Australia temporarily, as relied upon in the evidence and submissions advanced on behalf of the applicant and as required under cl 12(a) of Direction 69.
e. In circumstances where the delegate's reasons are not comprehensive and the issues in question were not referred to in the course of the delegate's reasons, and where the similarities, verbatim reproduction of significant sections of text, and unusual use of language between this refusal decision and the three previous refusal decisions indicate the use of 'template" reasons or common form reasons, demonstrate the delegate has failed to genuinely and intellectually engage with the submissions and evidence relied upon: Cf SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146.
2. The delegate erred in basing the decision upon a misunderstanding of the future legal operation and effect of the Migration Act with respect to the applicant
Particulars
a. Pursuant to cl 6 of Direction 69, the delegate was required to have regard to the applicant’s potential circumstances in Australia.
b. The delegate found that the presence in Australia of the applicant’s family members as a potential incentive to remain [in] Australia was not outweighed by the fact that the applicant had family members residing in his home country, and so was not satisfied that the applicant would be compelled to return to Albania on account of any family reasons.
c. In undertaking this assessment, the delegate has failed to appreciate, or has misapplied, misunderstood, or misconstrued the legal operation of relevant provisions of the Migration Act and the practical effects thereof.
d. In particular, the delegate has erred in failing to consider, understand or appreciate the operation of the Act in one or more of the following respects:
i. If an applicant fails to leave Australia prior to the expiry of their visa, they will become an unlawful non-citizen: sections 82(7), 13, 14
ii. Section 189 of the Act would, in those circumstance, impose a duty on every 'officer' to detain them and section 198 would then require their removal from Australia as soon as reasonably practicable.
iii. Family, address, and contact details are required to be provided and updated as part of a Student visa application: item 1221(1) of Sched. 1 of the Migration Regulations; sl04, cl 500.6ll(l)(a); condition 8533
iv. A person will therefore be readily detained or will, in effect, be a fugitive and will be separated from their family should they choose to evade detention.
v. A further consequence is that, once removed, they will be subject to exclusion and will thus have little or any chance of ever returning to Australia to see their relatives: Public Interest Criteria 4013 - 4014 under sched. 4 of the Migration Regulations, Special Return Criterion 5002 under sched. 5 of the Migration Regulations
e. The delegate's failure to consider or understand the operation of the act in one or more of these respects is material because, had these considerations been appreciated by the delegate, they would have been capable of leading to a different objective assessment of the level of incentive to the applicant to stay in Australia other than as a temporary entrant.”
It was recorded by the delegate that before arriving at a decision, regard had been had to the documents and information which had been provided by the applicant. Such documentation included a statement of the applicant, [7] a statement of the applicant’s father, [8] and a statement of the applicant’s uncle (the brother of the applicant’s father who is an Australian citizen who has lived in Australia since 2009 with his wife). [9]
[7]        CB p. 19.
[8]        CB pp. 20 – 21.
[9]        CB pp. 53 – 54.
When assessing the genuine temporary entrant criterion, the delegate noted that the applicant’s proposal to study in Australia involved him living with his uncle and his family. It was recorded that the applicant had significant family ties in Australia, and that the delegate had serious concerns that those family ties reduced the applicant’s incentive to return to Albania at the completion of his studies. In that regard, it is of note that in the statutory declaration of the applicant’s uncle, no mention was made as to what steps would be taken by him, at the conclusion of the applicant’s studies, to facilitate the applicant’s return to Albania. The delegate stated that the presence of family members in Australia constituted a potential incentive for the applicant to remain in Australia, and that consideration was not outweighed by the fact that his immediate family resided in Albania. The delegate was not satisfied that the applicant would be compelled to return to Albania on account of any family reasons.
Further, the delegate recorded that consideration had been given to the value of the course to the applicant’s future. It was noted that the applicant had indicated in his application that he had intended to work as an engineer building bridges and buildings in the future. The delegate recorded, consistent with the criteria as set out in paragraph 12(a) of the Ministerial Direction, that the applicant and his parents had failed to give strong enough reasons to satisfy the delegate that the applicant’s study plan in Australia would assist him in obtaining employment, or improving his employment prospects in his home country, in the future. It was recorded that whilst the applicant’s employment and remuneration could improve due to the completion of the proposed course of study, it had not been demonstrated that a clear and substantial improvement would arise from the proposed study that would “ … outweigh the significant time and monetary commitment this course would require”.
The delegate then decided to refuse the application for the Student visa on the ground that cl. 500.212 had not been met.

Grounds for Review

Ground 1

Ground 1 was an assertion that the delegate failed to give genuine and realistic consideration to, or make any findings with respect to, all of the factors identified in the Ministerial Direction which were the subject of clearly articulated claims by the applicant, or which appeared clearly from the material relied upon by him.
There are three (3) matters which were said by the applicant not to have been the subject of active intellectual engagement on the part of the delegate. First, it was claimed that the delegate had not properly considered the applicant’s, and the applicant’s parents, reasons for wishing the applicant to undertake study in Australia. Such assertion is without merit. The delegate considered aspects relevant to cl. 500.212 in the context of the evidence before the delegate being largely aspirational in character. The delegate had regard to the applicant’s domestic circumstances in Albania both in a familial and educational context. The delegate also had regard to the applicant’s stated desire to study in Australia, and perhaps obtain a future scholarship at an unnamed institution, be it in either Europe or the United States.
That the delegate did not refer to each and every aspect of the applicant’s claims, or the possibilities of the applicant’s aspirations being fulfilled, is unremarkable. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46] – [47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

Further, there are limits to the extent to which a delegate is required to set out the reasons for their decision. As was said by Logan J in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [7]:
“[7] This was a routine, merits based evaluation in the course of public administration. It was not just inherently specific to the material before the Tribunal but also reactive to the way in which the appellant had put his claim for the visa over the course of an administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the appellant was a genuine student. They were sufficient unto the day. Not to recognise this would be to make student visa decision-making more unwieldy, delayed and consumptive of public resources than it should be.”
The High Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [25] per French CJ, Bell, Keane and Gordon JJ, when discussing the duty of delegates when handing down decisions, said as follows:
“[25] It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, "jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power"; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed".
(Footnotes omitted)
The delegate noted the aspirational nature of the applicant’s claims, but found that the benefit of the applicant being educated in Australia was outweighed by the time and monetary commitment associated with such exercise. In the delegate’s consideration of relevant issues in that regard, the delegate had an active intellectual engagement with the applicant’s claims vis a vis the matters set out in paragraphs 12(a) – (c) inclusive of the Ministerial Direction. It is clear that the delegate framed their decision in part based upon the wording in such paragraphs. Such paragraphs provide as follows:
“12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
Second, the delegate considered all of the material before them, which material included the consent of the applicant’s parents to a visa being granted to a child under the age of eighteen (18) years. [10] The applicant’s age was not a matter overlooked by the delegate when considering his visa application. The delegate had to do no more than have regard to the applicant’s claims. That was done by the delegate.
[10] CB pp. 22 – 23.
Third, the delegate did acknowledge in the reasons for decision the particular educational circumstances of the applicant in Albania, namely that the applicant had completed year seven (7) of primary school. Having done so, the Court infers that the delegate well appreciated that the proposed course of study in Australia would complement the fact of the applicant having completed grade seven (7) in Albania. Having done so, the delegate was entitled to find that the time and expense associated with education in Australia outweighed any educational benefit which might accrue to the applicant from undertaking such education.
As to whether the claims made on behalf of the applicant were clearly articulated or not, the Court notes that no independent and informed opinion from a qualified educator in Albania was produced in support of the applicant’s claims. To the extent that the statements before the delegate were aspirational, they were necessarily difficult to assess, and otherwise of doubtful assistance in terms of what weight ought to be given to them. Little could have been said in the reasons of the delegate about the aspirational claim in the applicant’s father’s statement where he said:
“I firmly believe that there isn’t a better start any parents would desire for a child”.
The delegate did their best in considering such general and non-specific claims.
A delegate is only required to consider clearly articulated argument, and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:
“[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”
The Court also rejects the submission that the delegate did not actively engage with the applicant’s claims because there was a similarity of language to that used in paragraph 12(a) and 12(c) of the Ministerial Direction. A delegate is entitled to frame the wording of a decision based upon the wording of criteria required to be considered by them in their deliberations. The delegate in this instance was doing no more than that.
There is no merit to Ground 1 of the application for review.

Ground 2

Ground 2 is an assertion that the delegate erred by failing to have regard to the future legal operation and effect of the Act. It was asserted that the delegate should have specifically considered the legal consequences of someone remaining illegally in Australia, after the expiration of any visa, before deciding that the applicant did not have the intention of only remaining in Australia temporarily.
There is no force to such submission. The delegate was not required to have regard to the legal consequences of the applicant overstaying his visa. The delegate properly had specific regard to the applicant’s family situation in Albania, as well as to the substantial family ties which the applicant had in Australia.
Nothing in either the Ministerial Direction, or cl. 500.212, required the delegate to speculate as to what might, or might not, happen in the future relevant to any visa non-compliance. The very fact that the CoE the subject of the visa application was only for a three (3) year period instead of a five (5) year period, was, in itself, indicative of the likely future making of visa applications by the applicant for the two (2) year balance of the applicant’s proposed secondary schooling. Such was countenanced by CoE number B2008839. That failure evidenced an intention on the part of the applicant to stay for a period longer than the temporary period the subject of the application for the visa.
Ground 2 is misconceived and is without merit.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the delegate. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the delegate be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has not established jurisdictional error on the part of the delegate.
The application for review is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 19 May 2020