Chand v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1117
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chand v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1117
File number(s): SYG 63 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 1 November 2024 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student (Temporary) (Class TU) visa – obligation to invite applicant to present arguments relating to issues arising in review – extent of obligation whether Tribunal failed to give notice of issue – whether denial of procedural fairness - no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) s 360(1), s 425(1), s 476, s 499
Migration Regulations 1994 (Cth) sch 2 cl 500.212
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010
Hazra v Minister for Immigration and Border Protection [2017] FCCA 688
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 22 October 2024 Place: Parramatta Solicitor for the Applicants: Mr M Arch of Concordia Pacific Migration Lawyers Solicitor for the Respondents: Ms Q Ren of HWL Ebsworth ORDERS
SYG 63 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAMAL CHAND
First Applicant
GREWAL RANJEET KAUR
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicants pay the first respondent’s costs, fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 11 January 2021, the applicants lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicants a Student (Temporary) (Class TU) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In March 2009, the first applicant (Applicant) arrived in Australia as a dependent of a student visa issued to the second applicant. The second applicant is the wife of the Applicant. Since his arrival in Australia, the Applicant has held a number of temporary visas.
On 17 May 2019, the Applicant lodged an application for a Student (Temporary) (Class TU) visa. The second applicant was included in the application as a member of the Applicant's family unit.
On 9 July 2019, a delegate of the first respondent refused to grant the visa on the basis that they were not satisfied that the Applicant intended genuinely to stay in Australia temporarily and therefore did not satisfy the criterion in clause 500.212(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (Schedule 2).
On 25 July 2019, the applicants applied to the Tribunal for review of the delegate's decision.
On 8 May 2020, the Tribunal invited the applicants to provide information to satisfy the Tribunal that the Applicant was a genuine applicant for entry and stay as a student. The letter, which is relevant in considering the grounds advanced by the applicants in this Court, is referred to in more detail below.
On 22 May 2020, the applicants' representative responded to the invitation dated 8 May 2020. The response, which is relevant in considering the grounds advanced by the applicants in this Court, is referred to in more detail below.
On 23 November 2020, the applicants were invited to appear before the Tribunal at a hearing to give evidence and present argument on 8 December 2020.
On 8 December 2020, the Applicant appeared at the hearing before the Tribunal, accompanied by his representative. Following the hearing, and on the same day, the Tribunal made a decision affirming the delegate’s decision.
TRIBUNAL’S DECISION
The Tribunal referred to the background to the review and the relevant legislative framework. It noted that it was required to assess whether the Applicant satisfied clause 500.212 in Schedule 2 by reference to Direction No. 69 issued under s 499 of the Act (Direction 69).
The Tribunal referred to its exchange with the Applicant at the hearing and observed that:
(a)The Applicant had been living in Australia for over 10 years and had achieved a bachelor level qualification in India. The Applicant was unable to articulate the value of a low-level cookery course to his future.
(b)The Applicant had not provided any credible reasons for not undertaking the same study in his home country or region as similar courses were available there.
(c)The Applicant's immigration history suggested that he and his wife had been 'juggling their visa applications' to ensure that one of them had an appropriate visa at any given time that allowed them to remain in Australia.
(d)The Applicant's economic circumstances in Australia provided a significant incentive for the Applicant not to return to India.
(e)The Applicant had ties to Australia which would present as a significant incentive for the Applicant to remain in Australia. While he also had ties to India, his infrequent return to India suggested that those ties would not provide significant incentive for him to return there.
(f)The Applicant's representative's submission that given his age, the Applicant would wish to return to India, was not credible having regard to the Applicant's continued residence in Australia.
After considering the above matters, the Tribunal found that it was “not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212” and therefore the Applicant did not satisfy the criterion in clause 500.212 of Schedule 2.
PROCEEDINGS IN THIS COURT
Application and amended application
On 11 January 2021, the applicants filed in this Court an application for judicial review of the Tribunal’s decision.
There was little activity in the proceedings until 31 July 2024 when a registrar made orders for the applicants to file and serve materials by 31 July 2024 and for the Minister to file and serve materials in reply by 14 August 2024.
On 31 July 2024, the applicants filed an amended application (Amended Application). The grounds are as follows (verbatim):
1.The Tribunal materially failed to “invite” the first applicant under section 360 of the Act.
Particulars
The Tribunal failed to give the first applicant notice that his wife’s visa history and employment income in Australia would be an issue in the review.
2.Further or in the alternative, the Tribunal failed to deal with a claim or have regard to a mandatory consideration.
Applicants’ submissions
On 31 July 2024, the applicants filed a written submission. At the hearing on 22 October 2024, Mr Arch made oral submissions.
Ground 1
Section 360(1) of the Act provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments “relating to the issues arising in relation to the decision under review”. The applicants, with reference to the principle explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL), contended in their written submission that the Tribunal, in each of paragraphs 29 and 30 of its decision, made dispositive findings adverse to the applicants without giving the applicants notice of the dispositive issues. At hearing, Mr Arch limited this ground to the Tribunal’s finding in paragraph 30 of its decision. The Tribunal, in paragraph 30, referred to income of the Applicant’s wife up to May 2019 in the course of finding that “the economic circumstances of the applicant would present as a significant incentive for the applicant not to return to his home country”. Mr Arch contended that an issue which arose on the review was whether the wife’s past income or employment history in Australia provided an economic incentive for the Applicant to remain in Australia, the Tribunal did not notify the Applicant that this was an issue for the Tribunal, and the Tribunal thereby failed to comply with its procedural obligation under s 360(1) of the Act.
Mr Arch, in addition to relying on SZBEL, relied on the following cases in which this ground was considered: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 (SZHKA), SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 (SZTAP), Hazra v Minister for Immigration and Border Protection [2017] FCCA 688 (Hazra), and He v Minister for Immigration and Border Protection [2019] FCCA 85.
Ground 2
Ground 2 in the Amended Application contains no particulars. Some detail is provided in the applicants’ written submission. The applicants’ representative made a written submission to the Tribunal dated 20 May 2020 which appears at pages 84-94 of the Court Book (CB). The representative stated on a few occasions in the written submission that the Applicant had adhered to the conditions of the visas he held since arriving in Australia in 2009. It is contended in the applicants’ written submission that Direction 69 “specifically required the Tribunal to have regard to compliance with past visa conditions”, the Tribunal did not expressly refer to this matter in its decision, and therefore the Court should conclude that “the Tribunal failed to have regard to a mandatory consideration and failed to deal with a claim expressly made or which clearly arose from the materials”.
At the hearing on 22 October 2024, Mr Arch chose not to develop this ground. He stated that he relied on the applicants’ written submission.
First respondent’s submissions
On 14 August 2024, the first respondent filed a written submission. At the hearing on 22 October 2024, Ms Ren made oral submissions. The first respondent’s submissions are referred to further below.
CONSIDERATION
Ground 1
Statutory provisions
Clause 500.212 in Schedule 2 stated at the relevant time:
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.
As recorded in a note above clause 500.211 in Schedule 2, clause 500.212. had to be satisfied at the time of decision.
In 2016, the first respondent issued Direction 69 under s 499 of the Act which decision-makers must comply with in considering the genuine temporary entrant criterion in clause 500.212(a) of Schedule 2.
General principles
Section 360(1) of the Act states:
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In SZHKA at [103] Besanko J stated in relation to the identical provision in s 425(1) of the Act:
An invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review is an essential part of the review conducted by the Tribunal … I would add the following observations on the third argument advanced by the first respondent. The argument assumes that a broad meaning is to be given to the word issues in s 425(1) and that there is a far-reaching obligation on the Tribunal to advise the applicant for review of the issues. Those assumptions require examination. In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue. In addition to these considerations, it must be remembered, as the High Court pointed out in SZBEL 228 CLR 152, that there may be many ways in which it will become apparent to an applicant for review that a particular matter is an issue.
His Honour, after recording two matters which the appellants contended were “issues” within the meaning of s 425(1), continued at [113]-[115]:
[113] …Whether a matter such as this constitutes an issue depends upon two requirements.
[114] The first is that the matter play a part in the Tribunal member’s decision on the application for review. Matters not playing any part cannot, in my view, be said to arise in relation to the decision.
[115] The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
In SZTAP the appellant contended that the question of whether a family member would be able to provide surety for the appellant was a dispositive issue within the meaning of s 425(1). Robertson and Kerr JJ stated at [79]:
However, on the facts of the present case, we would not accept that it was critical to the Tribunal’s finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal.
In Hazra at [13] Judge Smith stated in relation to the word “issues” in s 360(1) that “the word … is better understood as including any question of significance that the Tribunal considers it needs to decide.”
Application of general principles to facts of case
Whether the Tribunal contravened the principle in SZBEL in a particular case is “fact specific” (SZTAP at [77]) and therefore requires consideration of the particular facts of the case. Some features of the present case are as follows.
First, the delegate, in his reasons for decision, did not refer to the income of either applicant and did not make a finding to the effect that the economic circumstances of the Applicant would present as a significant incentive for the Applicant not to return to his home country.
Second, on 8 May 2020, the Tribunal sent the applicant a letter which invited him to provide information. The letter stated in part (CB 75):
…
As you applied for the visas on the basis of undertaking a course of study in Australia,
it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide… sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student.
…
In considering whether an applicant is a genuine applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’. A copy of this is attached for your reference.
The letter attached a copy of Direction 69. Paragraph 9(c) of Direction 69 stated:
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
…
(c) economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
…
As stated in the first respondent’s written submission, this letter put the Applicant on notice that all matters in Direction 69 were in issue at the hearing before the Tribunal, including the matter in paragraph 9(c), being “economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country”. At the hearing on 22 October 2024, Mr Arch did not dispute this point.
Third, on 20 May 2020, the applicants’ representative, in response to the letter dated 8 May 2020, provided the Tribunal with a submission. The submission, in addition to responding to the delegate’s concerns, made additional “submissions on Genuine Temporary Entrant Criteria”: CB 88.5 and following. Despite paragraph 9(c) of Direction 69, this part of the submission did not address the matter in paragraph 9(c) of Direction 69. Further, the submission said little about the Applicant’s employment in Australia between 2009 and May 2020 and the income he earned in this period, and did not address whether or not either applicant intended to work in Australia if the Applicant was granted a student visa and, if so, the nature of the employment and anticipated income. Further, as pointed out by Ms Ren, one part of the submission indicated a close link between the economic circumstances of the Applicant and his wife. Specifically, the submission included a table which recorded the applicants’ shared living expenses and funds to cover living expenses. Another part of the submission referred to the desire of the applicants “to open a restaurant together”. Further, the submission attached a resume of the Applicant’s wife which indicated her income-earning ability in Australia and her objective “to find full time work with a prestigious company”. In summary:
(a)It appears from the submission dated 20 May 2020 that the representative was aware that all matters in Direction 69 were in issue before the Tribunal, but the representative, whether intentionally or by oversight, failed to address the matter in paragraph 9(c) of Direction 69.
(b)The submission indicates a close link over a period of time between the economic circumstances of the Applicant and his wife.
Fourth, on 23 November 2020, the Tribunal sent the applicants an invitation inviting them to attend the hearing on 8 December 2020. The letter stated in part:
We may assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
As stated in the first respondent’s written submission, this letter again put the applicants on notice that all matters in Direction 69 were in issue at the hearing before the Tribunal. Again, at the hearing on 22 October 2024, Mr Arch did not dispute this point.
Fifth, on 8 December 2020, the applicants and their representative attended the hearing. At the hearing in this Court, Mr Arch tendered a transcript of the hearing before the Tribunal. The transcript records the following exchange between the Applicant and Tribunal member:
…
Tribunal Member (TM): Alright okay thank you for that. Ah. you’ve been here for some time now in Australia, you’re here with your spouse, that’s correct isn’t it?
Applicant (A): Yes I am with my wife here.
TM: And she’s working as a restaurant manager, is that correct?
A: No she’s not working at this point in time.
TM: Umm but she was working as a restaurant manager, is that correct?
A: Yes she worked as a restaurant manager before.
TM: Mmm hmm. And are you working at the moment? You have been working as a cleaner and a drive…are you working at the moment?
A: I don’t do that job now.
TM: When did you stop? When did you stop working?
A: Ah I work in a bakery now.
TM: Are you working in a bakery now? So you are working is that correct?
A: Yes absolutely correct.
TM: What are you earning working in a bakery at the moment?
A: Hourly pay there is twenty-five ($25) an hour. Yearly it would be forty thousand ($40,000) annual.
TM: And your wife, when did your wife stop working?
A: When her four five seven (457) visa finished, after that she did not work.
TM: But when did the, her four five seven (457) visa finish?
A: Twentieth (20th) of May two thousand ninety…nineteen (2019).
TM: And prior to that, what was she earning as a restaurant manager?
A: She had a package of fifty-five thousand dollars ($55,000) per annum.
TM: So prior to May nineteen (2019), you were earning a total of ninety-five thousand Australian dollars ($95,000) per annum for a period of time?
A: Yes that is absolutely right.
…
Towards the end of the hearing, the Tribunal member invited the applicants’ representative to make a submission. The representative stated in part:
… they have been doing job which are not like the career orientated jobs and they have come to a point of life where they want to go back and start their career … what they’re earning they’re spending and they’re not earning in the career what they want to do.
It appears from the representative’s submission that the representative was aware that the Tribunal member had asked the Applicant questions about the employment and income of both applicants, and the representative, with knowledge that all matters in Direction 69 were in issue, made a submission in response to the answers given by the Applicant. It would be surprising if the representative did not appreciate the relevance of the Tribunal member’s questions about the employment and income of the Applicant and his wife to the matters in Direction 69, including paragraph 9(c). If he did not appreciate the relevance, he could have asked the Tribunal member.
Sixth, on 8 December 2020, the Tribunal made a decision. The Tribunal’s reasons indicate that, for a number of reasons, the Tribunal, on application of Direction 69, was concerned that the Applicant did not intend to stay in Australia temporarily. For example:
(a)The Tribunal, in paragraph 27 of its decision, considered the value of the course to the Applicant, a matter to which paragraph 12 of Direction 69 stated that decision-makers should have regard. The Tribunal concluded that “the relevance of this course in cookery to the applicant’s past or proposed future employment … is not established” and “this lends weight to the contention that the applicant is seeking to use the student visa program to yet again extend his stay here in Australia and that that also suggests that the applicant is seeking to use the student visa program to circumvent the migration program”.
(b)The Tribunal, in paragraph 28 of its decision, considered why the Applicant did not return to his home country to undertake this study, a matter to which paragraph 9(a) of Direction 69 stated decision-makers should have regard. The Tribunal concluded that “the applicant did not provide reasonable reasons for not undertaking this study in his home country” and “this lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program”.
(c)The Tribunal, in paragraph 29 of its decision, considered the Applicant’s visa and immigration history in Australia, a matter to which paragraph 14 of Direction 69 stated that decision-makers should have regard. The Tribunal found that “the applicant’s visa and migration history would suggest that the applicant is seeking to use the student visa program to maintain residence in Australia and circumvent the migration program”.
(d)The Tribunal, in paragraph 31 of its decision, considered the Applicant’s personal ties in Australia, a matter to which paragraph 11(a) of Direction 69 stated decision-makers should have regard. The Tribunal concluded that “the applicant’s ties with Australia would present as a strong incentive for the applicant to remain in Australia and that this also lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program”.
(e)The Tribunal, in paragraph 32 of its decision, considered the Applicant’s personal ties to his home country, a matter to which paragraph 9(b) of Direction 69 stated decision-makers should have regard. The Tribunal concluded that “the applicant’s personal ties to his home country do not serve as a significant incentive for the applicant to return to his home country and that this also lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program”.
The Tribunal’s finding the subject of challenge in ground 1 of the Amended Application appears in paragraph 30 of the Tribunal’s decision. The Tribunal stated:
[30] The Tribunal also had a detailed discussion with the applicant regarding his economic circumstances and notes that the applicant has stated that he is currently working in a bakery earning approximately AU$40,000 per annum. It was also noted that, as above, throughout his time here in Australia in varying capacities earning consistent remuneration of this figure or above. It is also noted by the Tribunal that the applicant's wife has been working as a manager up to May 2019 earning, in his submission, AU$55,000 per annum. When questioned by the Tribunal about this matter the applicant stated that for some time during this period, they were receiving a combined income of approximately AU$95,000 per annum. It is further noted by the Tribunal that the applicant has previously stated that his living costs here have been approximately $25,000 per annum. The Tribunal has considered this and finds that the economic circumstances of the applicant would present as a significant incentive for the applicant not to return to his home country and that consideration has also been given as to the applicant's circumstances relative to his home country and to Australia. The Tribunal finds that this lends weight to the contention that the applicant is using the student visa program to circumvent the migration program.
The Tribunal, in paragraph 30, addresses the matter in paragraph 9(c) of Direction 69. As stated in paragraph 35 above, Mr Arch appeared to accept that, by virtue of the letter from the Tribunal to the applicants dated 8 May 2020, the applicants were on notice that an issue on the review was whether, with reference to paragraph 9(c) of Direction 69, the “economic circumstances of the applicant … would present as a significant incentive for the applicant not to return to their home country”.
For the following reasons, the Court is not persuaded that the wife’s past income or employment history in Australia, or whether the wife’s past income or employment history provided an economic incentive for the Applicant to remain in Australia, was an issue arising in relation to the decision under review:
(a)The Applicant was on notice prior to the hearing on 8 December 2020 that an issue arising in relation to the decision under review was whether his economic circumstances would present as a significant incentive for him not to return to his home country.
(b)It was part of the Applicant’s case to the Tribunal that there was a close link between the economic circumstances of the Applicant and his wife.
(c)The Court accepts that the wife’s income up to May 2019 was a matter on which the Tribunal relied in finding that “the economic circumstances of the applicant would present as a significant incentive for the applicant not to return to his home country”. In this manner, the wife’s past income “played a part in the Tribunal’s decision on the application for review”: see SZHKA at [114]. But, first, the wife’s past income was not an issue arising in relation to the decision under review. It was “evidence relating to an issue” (see SZHKA at [103]), with the issue being whether the economic circumstances of the Applicant would present as a significant incentive for the Applicant not to return to his home country. Second, even if it could be said that the relationship between the wife’s income and the economic circumstances of the Applicant was an issue for the Tribunal, in light of the multiple concerns the Tribunal had about the applicants’ case (see paragraph 42 above), the Court does not accept that this relationship was “substantial enough to constitute an issue” within the meaning of s 360 (1): see SZHKA at [115]. The wife’s income and the relationship between the wife’s income and the Applicant’s economic circumstances were not “critical to the Tribunal’s findings” or “a determinative factor in the mind of the Tribunal” or a “matter the Tribunal considers may be important to its decision”: SZTAP at [79]. It was not a “central and determinative issue on the review” (AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494 at [102]) or a “question of significance that the Tribunal considers it needs to decide”: Hazra at [13].
Further, even if the wife’s past income was an issue arising in relation to the decision under review, the Applicant knew or was on notice, from questions he was asked at the hearing about his wife’s income, that the Tribunal may have regard to his wife’s income in considering matters referred to in Direction 69, including paragraph 9(c) of Direction 69. For this reason, the Applicant was aware this was an issue. As stated in the first respondent’s written submission, the Tribunal was not required to “identify the significance of questions that it puts to a claimant or the ultimate matter or issue to which those questions go”: Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285 at [88]. In the particular circumstances, the Applicant was given sufficient notice of the issue, and a sufficient opportunity to give evidence and present arguments in relation to the issue.
Ground 1 is not made out.
Ground 2
The applicants’ representative made a written submission to the Tribunal dated 20 May 2020 which appears at CB 84-94. The representative stated on a few occasions in the written submission that the Applicant had adhered to the visa conditions of the visas he held since arriving in Australia in 2009. It is contended in the applicants’ written submission that Direction 69 “specifically required the Tribunal to have regard to compliance with past visa conditions”, the Tribunal did not expressly refer to this matter in its decision, and therefore the Court should conclude that “the Tribunal failed to have regard to a mandatory consideration and failed to deal with a claim expressly made or which clearly arose from the materials”.
There are at least two difficulties with this contention. First, the Court is not persuaded that Direction 69 required the Tribunal to have regard to, in the case of the Applicant, whether or not he had complied with the conditions of temporary visas he held in Australia since arriving in 2009. The applicants’ submission relies on paragraph 14 of Direction 69. But this paragraph does not expressly require the Tribunal to have regard to whether an applicant complied with conditions of one or more temporary visas held before applying for the visa under consideration. Mr Arch did not contend that the obligation arose “by implication from the subject matter, scope and purpose” of the statutory scheme: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. Second, as stated in the first respondent’s written submission, on application of the principle explained in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47], the fact that the Tribunal does not refer to a matter in its reasons for a decision does not mean the Tribunal overlooked the matter. Whether or not the Applicant complied with conditions of the temporary visas he held in the past was a comparatively minor issue in light of the Tribunal’s more significant concerns. The Court is not persuaded that the Tribunal overlooked the submission made by the applicants’ representative.
Ground 2 is not made out.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Both parties agreed that costs should follow the event. The first respondent sought costs fixed in the scale amount which is $8,371.30. Mr Arch did not oppose this amount. An order will be made accordingly.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 1 November 2024
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