Ditta v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1398
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ditta v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1398
File number(s): SYG 2093 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 19 December 2024 Catchwords: MIGRATION – Judicial Review – student visa – Direction No. 69 – whether applicant was a genuine temporary entrant – whether Tribunal failed to consider a claim – whether Tribunal afforded applicant procedural fairness – whether para 12(c) of Direction No. 69 ultra vires – whether Tribunal failed to consider evidence – jurisdictional error not established – materiality – application dismissed. Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593
Kaur v Minister for Home Affairs [2019] FCA 2026
Kumar v Minister for Immigration and Border Protection [2020] 274 FCR 646; FCAFC 16
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499
Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; HCA 15
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112; FCA 674
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Division: General Federal Law Number of paragraphs: 79 Date of hearing: 7 November 2024 Place: Sydney Counsel for the Applicant: Ms. N Maddocks of Counsel Counsel for the Respondents: Mr. T Reilly of Counsel ORDERS
SYG 2093 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAM DITTA
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application filed on 4 September 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION
Before the Court is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 9 August 2020. By that decision, the Tribunal affirmed a decision made by a delegate (delegate) of the first respondent (Minister) on 15 November 2017, refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa).
For the reasons that follow, the application is dismissed.
BACKGROUND & PROCEDURAL MATTERS
The applicant is a male citizen of India. He first arrived in Australia on 16 January 2009 as the holder of a student visa.[1]
[1] Court Book (CB) 73.
On 31 August 2017, the applicant lodged an application for another student visa on the basis of his enrolment in a Bachelor of Accounting at Group Colleges Australia. In support of his application, the applicant provided, among other things, a document entitled ‘Statement of Purpose’.[2]
[2] CB 26-27.
On 15 November 2017, a delegate of the Minister refused to grant a student visa to the applicant. The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and thereby found that cl 500.212 in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not met.[3]
[3] CB 70-75.
On 4 December 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[4]
[4] CB 76-77.
On 20 September 2019, the Tribunal invited the applicant to provide information pursuant to s 359 of the Migration Act 1958 (Cth) (Act) (s 359 invitation).[5] A copy of Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) was attached to the s 359 invitation letter. The s 359 invitation relevantly provided:[6]
[5] CB 90-98.
[6] CB 92.
As you applied for a visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you 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 you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page….
Alternatively, you may print, complete and return a hard copy of the form to us should you prefer. Click here to open a printable copy of the Request for Student Visa Information form. Please do not return a hard copy of the form to us if you have already submitted it online.
…
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 is attached for your reference
On 4 October 2019, the applicant’s representative emailed the Tribunal a completed ‘Request for Student Visa Information’ form dated 27 September 2019 (completed RSVI form).[7]
[7] CB 100-111.
On 21 October 2019, the Tribunal sent a letter to the applicant inviting him to attend a hearing, via telephone, scheduled to take place on 6 November 2019 at 12.30 pm (NSW time).[8] This hearing invitation letter also contained a request for the applicant to provide the Tribunal with the following information at least seven days before the hearing:
(a)A copy of the applicant’s current Confirmation of Enrolment or other documents demonstrating he is currently enrolled in a course of study; and
(b)Documents demonstrating the applicant’s past studies in Australia, including copies of all of his attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
[8] CB 113-120.
On 22 October 2019, the applicant’s representative emailed the Tribunal requesting an adjournment of the hearing. The Tribunal wrote to the applicant the following day advising that the request had been granted and that the hearing would be postponed to a later date.
On 12 November 2019, the Tribunal sent a letter to the applicant inviting them to attend a rescheduled hearing which was to take place on 4 December 2019 at 12.30 pm (NSW time), again by way of telephone. This hearing invitation letter also contained the same request for information detailed above at paragraph [9], to be provided at least seven days before the rescheduled hearing.
On 22 November 2019, the applicant’s representative sent an email to the Tribunal, attached to which was:[9]
(a)a completed ‘Response to hearing invitation – MR Division’ form;
(b)a copy of the applicant’s new passport;
(c)records of results and academic transcripts for various courses the applicant had completed; and
(d)evidence of funds transfers made by the applicant’s father to the applicant.
[9] CB 134-145.
On 25 November 2019, the applicant’s representative sent an email to the Tribunal attached to which was:[10]
(a)a letter from the applicant’s representative which contained various submissions;
(b)a current Confirmation of Enrolment from Group Colleges Australia Pty Ltd for Bachelor of Accounting;
(c)current course progress for the Bachelor of Accounting course which indicated the applicant was due to complete his last three subjects on 13 December 2019; and
(d)records of results and academic transcripts for various courses the applicant had completed.
[10] CB 146-149.
The applicant and his representative appeared before the Tribunal at the scheduled hearing on 4 December 2019.[11]
[11] CB 153.
On 15 January 2020, the applicant’s representative sent an email to the Tribunal advising that the applicant had successfully completed his Bachelor of Accounting, and attached the Award and academic transcript. The Tribunal was further advised that the applicant had obtained an offer letter from Holmes Institute to study a Master of Professional Accounting, and that he was awaiting his Confirmation of Enrolment for that course and would provide the Tribunal with a copy of that document once he had received it.
On 28 January 2020, the applicant’s representative wrote to the Tribunal to advise that the applicant had obtained the Confirmation of Enrolment to study the Master of Professional Accounting at Holmes Institute and attached a copy of that document to the correspondence.[12]
[12] CB 167-168.
On 9 August 2020, the Tribunal affirmed the delegate’s decision to refuse to grant the student visa.
THE TRIBUNAL’S DECISION
The Tribunal identified, at [7] to [10] of its decision, that the issue arising on the review was whether the applicant met the requirements of cl 500.212 of the Regulations. It also observed that regard must be had to Direction 69 when addressing that issue.
In assessing the applicant’s oral and documentary evidence to determine whether the applicant satisfied cl 500.212(a), findings were made in relation to each of the sub-subclauses within that provision. Those findings are summarised below.
The applicant’s circumstances: sub-subcl. 500.212(a)(i)
The factors set out in paragraphs 6 to 12 of Direction 69 are relevant to the Tribunal’s assessment of this criterion.
In relation to the applicant’s circumstances in his home country, the Tribunal:
(a)recorded the applicant’s evidence in relation to the location of his family members and degree of contact with them, his two visits to India since first arriving in Australia, his assets in India and the extent of community involvements in India. It found that whilst he has some family ties in India they were not strong enough to provide him with a significant incentive to return there at the conclusion of his studies. The Tribunal also noted that whilst there was no evidence of any economic circumstance that would provide him with a significant incentive to avoid returning to India, it nevertheless found that there was no evidence of any economic factor or circumstance that would provide him with a positive incentive to return to India. The Tribunal concluded that these matters weighed ‘reasonably strongly’ against the applicant (at [22]).
(b)found that the applicant had reasonable motives to study in Australia (at [23]).
(c)found that he had no military service obligations to perform on his return to India, and that he had no concerns regarding civil or political unrest in India (at [24]).
In weighing these matters, the Tribunal found that while the findings at (b) and (c) above weigh to some extent in the applicant’s favour, the findings in (a) above outweighed this. On this basis, it concluded that that the applicant’s circumstances in his home country history weighed ‘quite strongly’ against the applicant’s claims to be a genuine temporary entrant (at [25]).
In relation to the applicant’s potential circumstances in Australia, the Tribunal recorded the applicant’s evidence in relation to his family members, work and living circumstances in Australia and found that the applicant had ‘some personal ties with Australia’, although not especially strong ones, and no significant economic ties. On this basis, it found that the applicant had some incentive to stay in Australia at the conclusion of his studies, but not a strong incentive, and that this gave some weight to the applicant’s claim to be a genuine temporary entrant (at [26]-[27]). On this basis, it concluded that the applicant’s potential (and indeed actual) circumstances in Australia provide ‘little support’ to his claim to be a genuine temporary entrant (at [30]).
In relation to the value of the applicant’s courses to his future, the Tribunal noted that the applicant’s current course of study would clearly improve his employment prospects in India, and could only assist him to obtain employment in India (at [31]). Whilst it accepted that the applicant’s studies had value for his future in his home country, it found that they may have even more value in Australia (at [32]). On this basis, it concluded that these circumstances provide ‘some support…but not strong support’ to his claim to be a genuine temporary entrant (at [33]).
The applicant’s immigration history: sub-subcl. 500.212(a)(ii)
The factors set out in paragraphs 13 to 14 of Direction 69 are relevant to the Tribunal’s consideration of this criterion.
In relation to the applicant’s immigration history, the Tribunal observed that the applicant had resided in Australia for ‘just short of 11 years and 7 months’ and that he had been enrolled in courses of study consistently over that period, with only relatively short gaps between courses (at [14]). The Tribunal noted that the ‘sheer length’ of the applicant’s stay and his relatively frequent changes of course ‘cast doubt in themselves’ on the applicant’s claimed intention to return to his home country. It then recorded a detailed chronology of the applicant’s immigration history, including details of his various studies in Australia. Following that lengthy series of findings, the Tribunal:
(a)observed that the applicant’s study history showed a number of changes of study path. Whilst it noted that a change in study pathway did not necessarily in and of itself indicate that an applicant is not a genuine temporary entrant, The Tribunal observed that this number of changes raises that possibility, in that it suggests the applicant has other reasons for staying in Australia (at [15]). It accepted that the applicant had addressed some of the changes to his study pathway at the hearing. For example, it accepted the applicant’s explanation for changing from hospitality to management studies in July 2010 and his explanation for his move to accounting studies. However, the Tribunal found that the applicant had offered no explanation for his changes to tourism studies and marketing studies (at [15]).
(b)observed that the applicant’s study history also showed some course cancellations, and noted that any concern about these cancellations had been put to the applicant at hearing pursuant to s 359AA of the Act. The Tribunal accepted the applicant’s explanations for the cancellations and noted that these circumstances were outside of the applicant’s control (at [16]).
(c)found that the ‘sheer length’ of the applicant’s study history, along with the applicant’s several changes of study pathway ‘strongly indicate that [the applicant] is using the student visa system primarily to maintain residence in Australia’ (at [17]).
(d)accepted that there was no evidence before it that the applicant had been refused a visa, had a visa cancelled, been the subject of visa cancellation, had an Australian visa application that was yet to be determined or had breached the migration laws of Australia or any other country (at [18]).
In weighing these matters, the Tribunal found that the effect of the sheer length of the applicant’s stay in Australia and (to a lesser extent ) his changes in study pathway could not be overcome by other ameliorating factors. On this basis, it concluded that that the applicant’s immigration history weighed ‘somewhat against’ his claim to be a genuine temporary entrant (at [19]).
If the applicant is a minor: sub-subcl 500.212(a)(iii)
Paragraph 15 of Direction 69 is relevant to the Tribunal’s assessment of this criterion. The applicant made no submissions with regard to this factor. This is understandable as he was not a minor at the time he made the visa application. Consequently, the Tribunal made no findings in this regard and this criterion was not given any weight in the Tribunal’s decision.
Any other relevant matter: sub-subcl 500.212(a)(iv)
Paragraph 16 of Direction 69 is relevant to the Tribunal’s assessment of this criterion. The Tribunal made no findings in this regard and this criterion was not given any weight in the Tribunal’s decision.
Conclusion
Weighing all the matters together, the Tribunal found that the evidence against the applicant’s claim to be a genuine temporary entrant outweighed that supporting his claim. Accordingly, the Tribunal found that the applicant did not meet cl 500.212(a) and affirmed the delegate’s decision not to grant the applicant a student visa (at [34]-[38]).
RELEVANT LEGISLATION
Clause 500.212 in Part 500 of Schedule 2 to the Regulations relevantly provided:
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.
PROCEEDINGS IN THIS COURT
These proceedings were commenced by an application for judicial review filed on 4 September 2020. The applicant now relies on a further amended application in which four grounds of review are pleaded. Each of these grounds is addressed below.
The matter was set down for a hearing before me on 7 November 2024. Both parties filed and served a written outline of submissions in October 2024 and presented oral submissions at hearing. The applicant also relies on the Affidavit of Jia Li affirmed on 10 October 2024, which annexes a transcript of the Tribunal hearing (Li Affidavit).
At hearing, it was common ground between the parties that the decision maker should have regard to the factors set out in Direction 69, when considering he applicant’s evidence against the four criteria specified within cl 500.212(a) of the Regulations: see Kaur v Minister for Home Affairs [2019] FCA 2026 at [29]-[30].
Ground 1 – Failure to Consider a Claim
By ground 1, the applicant contends that the Tribunal failed to consider a claim, that it was required to consider, in particular, the applicant’s claim that local Indian employers prefer to hire foreign-educated job candidates, and that locally graduated student have difficulties communication with international clients.
The applicant argues that his response set out in part 17 of the completed RSVI form goes to paragraph 9(a) of Direction 69, states:
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant.
The applicant submits that at no point in the Tribunal’s reasons was the applicant’s claim mentioned or considered. Rather, the Tribunal only referred to the evidence the applicant gave at hearing when considering the applicant’s circumstances in his home country.
The Minister contends, and the applicant accepts, that the Tribunal is not required to refer to every piece of evidence before it: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]. Further, the Minister took me to [11] of the Tribunal’s decision in which the Tribunal notes that the applicant had provided it with a number of items of documentary evidence, including:
b. a completed Request for Student Visa Information form, submitted in response to the Tribunal’s request for information made pursuant to s.359(2) on 20 September 2019.
Accordingly, the Minister submits that the Tribunal can be taken to have read the completed RSVI form. In circumstances in which the Tribunal found, at [23], that the applicant has reasonable motives for studying in Australia, the Minister invites the Court to infer that the Tribunal accepted or at least did not reject the applicant claim, rather than overlook it.
I note the Minister’s submission on this issue, such that the Tribunal is not required to recite every piece of evidence before it, particularly where reference has been made at [11] of the Tribunal’s reasons, and that it has accepted the completed RSVI form as containing relevant evidence for the purposes of its assessment. There is considerable force in that submission, particularly where there is nothing in the Tribunal’s reasons which disclose that it ignored the applicant’s statement at part 17 of the completed RSVI form. Nevertheless, for the purposes of its assessment against sub-subcl 500.212(a)(i), the Tribunal did have proper regard to the applicant’s statement at part 17 of the completed RSVI form when it considered the factors specified within paragraph 9(a) and paragraph 12 of Direction 69.
In relation to the Tribunal’s assessment against paragraph 9(a) of Direction 69, while the Tribunal did not specifically refer to the applicant’s statements at part 17 in the completed RSVI form, reference was made to his evidence at hearing that he chose to study in Australia because of the ‘high reputation of the Australian education system generally, and of Australian qualifications particularly’.[13] This oral evidence, in my view accords, with the applicant’s statement at part 17 of the completed RSVI form in which the applicant states that his completion of Australian courses would serve him well when seeking to compete for employment in the Indian job market against ‘locally graduated students’. On this basis, it can be inferred that the Tribunal considered that statement as part of its broader assessment, particularly given the Tribunal’s classification of the completed RSVI form among the relevant documentary evidence before it.[14] It is also clear from the Tribunal’s reasons that it did not exclude any information within the completed RSVI form on the basis that it was not relevant to the issues before the Tribunal. I therefore reject the applicant’s submissions on this issue.
[13] CB 193 at [23].
[14] CB 184 at [11].
In relation to the Tribunal’s assessment against the factors in paragraph 12 of Direction 69, while the Tribunal again did not specifically refer to the applicant’s statements at part 17 of the completed RSVI form, the Tribunal indicated to the applicant at hearing, that the Master degree course that he was proposing to undertake, and which was relevant to the Tribunal’s assessment at the time it reached its decision given his completion of the Bachelor degree course prior to that date, would be ‘very beneficial’. [15] The Tribunal’s acceptance of the applicant’s evidence in relation to the beneficial nature of this course was made clear to the applicant at hearing. In its reasons at [31], the Tribunal stated:
…his current course will clearly improve his employment prospects in India, and can only assist him to obtain employment there. The applicant stated at hearing that his intention upon conclusion of his studies is to find a management accounting position either in India or the United Arab Emirates.
[15] Li Affidavit 11, line 11.
In my view, the Tribunal’s reasons reflect its consideration of the value of the course to the applicant’s future in terms that do not suggest it overlooked the applicant’s statements at part 17 of the completed RSVI form. I infer from the Tribunal’s decision at [31] that due consideration was given to the applicant’s statements at part 17 of the completed RSVI form when the Tribunal found that his current course ‘will clearly improve his employment prospects in India, and can only assist him to obtain employment there’. That finding squarely addresses the thrust of the applicant’s evidence set out in part 17 of the completed RSVI form in which the applicant sought to impress upon the Tribunal that he would be better placed to compete against ‘locally graduated students’ in the Indian job market if he were permitted to complete his proposed studies in Australia. I reject the applicant’s contention that the Tribunal was obliged to take into account the entirety of the applicant’s education in Australia when reaching its findings against the factors specified within paragraph 12 of Direction 69. Those factors, as expressed in Direction 69, clearly specify that regard need only be had to the applicant’s proposed course of study.
Therefore, no jurisdictional error is disclosed in this regard and the ground must fail.
Ground 2 – s 360 Complaint
By ground 2, the applicant contends that the Tribunal denied him procedural fairness by failing to afford him a real and meaningful opportunity to give evidence and present arguments as required by s 360 of the Act.
In particular, the applicant argues that the Tribunal did not identify particular matters which arose as part of its consideration of the applicant’s evidence against Direction 69, namely:
(a)changes to the applicant’s study pathway, particularly his changes to tourism and marketing studies (as it is relevant to paragraph 4(c) of Direction 69);
(b)the applicant’s knowledge of his education provider (as it is relevant to paragraph 11(e) of Direction 69); and
(c)that the applicant could in all likelihood command a much higher salary using his qualifications in Australia (as it is relevant to paragraph 12(c) of Direction 69).
The applicant contends that various deficiencies in the applicant’s evidence in relation to each of these matters, as evinced in the Tribunal’s findings and reasons, amounts to an issue, the subject of which the Tribunal was obliged to bring to the applicant’s attention during the course of the hearing or following the hearing.
The applicant submits that whilst the dispositive issue before both the delegate and the Tribunal was whether the applicant was a genuine temporary entrant for the purposes of cl 500.212, that the ‘issues’ must be identified at a higher level of granularity.
The applicant submits that, as a matter of procedural fairness, the Tribunal ought to have raised various issues that arose out of the applicant’s evidence, or lack thereof, with the applicant for his comment, insofar as they were relevant to the Tribunal’s consideration of Direction 69. The applicant argues that had he been given the opportunity to give evidence in relation to these issues, there is a realistic possibility that the Tribunal may have reached a different view as to the weight to be attributed to the various factors, and that a failure to do so gives rise to jurisdictional error.
The Minister notes that the applicant was supplied with a copy of Direction 69 before the hearing, on 20 September 2019.[16] The Minister states that the Tribunal did not need to provide the applicant with a ‘running commentary’ on what it thought of the applicant’s evidence during the hearing: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48].
[16] CB 92-98.
With regards to the Tribunal’s decision, the Minister submits that in relation to paragraph 4(c) of Direction 69, the applicant’s study history, which the applicant supplied to the Tribunal in his completed RSVI form, indicated changes over time, and that it was for the applicant to put forward explanations with regards to the changes at the hearing if he wished to do so. Further, with regards to paragraphs 11(e) and 12(c) of Direction 69, the Minister submits that the Tribunal was entitled to refer to the factors without specifically raising them with the applicant at hearing, maintaining that it is the applicant’s prerogative to give evidence in relation to each of these factors if he wished to do so.
I agree with, and adopt, the Minister’s submissions in relation to this ground.
It is clear from the delegate’s decision that the dispositive issue was whether the applicant satisfied the genuine temporary entrant criterion in clause 500.212 having regard to the factors set out in Direction 69. Further, the Tribunal’s s 359 invitation, put the applicant on notice that in considering whether he satisfies the genuine temporary entrant criterion, it must have regard to Direction 69. In addition, the hearing invitation sent to the applicant on 12 November 2019 contained a clear indication of the dispositive issue:[17]
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.
[17] CB 132.
As the High Court said in SZBEL at [35], if the Tribunal takes no step to identify some issues other than those that the delegate considered dispositive, and does not tell the applicant what the other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’. In my view, there is nothing to indicate that the dispositive issue was restricted to whether the applicant was a genuine temporary entrant within the meaning of cl. 500.212(a).
By way of its written submissions to the Court, the applicant maintains that each of the three matters above at [46] is linked to a factor within Direction 69. However, insofar as the applicant submits that the Tribunal was obliged to raise any concern about possible deficiencies in aspects of the applicant’s evidence in relation to these matters, or prompt the provision of additional evidence in relation to these matters, for the purposes of its assessment against the various factors in Direction 69, I refer to SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at [36], and the cases cited therein, in which Graham J held (emphasis added in bold):
Proceedings before the Tribunal are not adversarial, but inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal member conducting an inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. In an application for a review before the Tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in a manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on.
It the present case, it was not for the Tribunal to prompt the applicant to provide an explanation for the absence of evidence, or to suggest he proffer further evidence, in order to assist him in the making of his case. Nor was it for the Tribunal to give a ‘running commentary’ upon what it thinks about the evidence given by the applicant: see SZBEL at [48]. In my view, the matters raised by the applicant do not amount to issues and the Tribunal was under no obligation to put the applicant on notice of the way it might assess his evidence, or lack thereof, in relation to the various factors within Direction 69. The Tribunal was not obliged to provide a ‘running commentary’ on the applicant’s evidence in relation to these matters. In this regard, I rely upon the following comments of the High Court in SZBEL at [48]:
Secondly, as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
The Tribunal was also not obliged to give advance notice of its thought process, including ‘the existence of doubts, inconsistencies, or the absence of evidence’: SZBYR and Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26, at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Therefore, no jurisdictional error is disclosed in this regard and the ground must fail.
Ground 3 –Invalidity Complaint
By ground 3, the applicant contends that paragraph 12(c) of Direction 69 is invalid and ultra vires the power to make directions under s 499(1) of the Act.
Paragraph 12(c) of Direction 69 relevantly provides:
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
…
c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualification to be gained from the proposed course of study.
The applicant submits that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those function and the exercise of those powers: s 499(1). Those directions cannot be inconsistent with the Act or Regulations: s 499(2). The delegate and Tribunal must comply with a valid Ministerial direction: s 499(2A); Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; HCA 15 at [19]; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112; FCA 674 at [41]-[44].
The applicant argues that the scope, subject matter and purpose of cl 500.212 does not render the consideration provided in paragraph 12(c) of Direction 69 a relevant or mandatory consideration in determining whether an applicant is a genuine temporary entrant. Further, a direction to decision makers to have regard to the remuneration an applicant could expect to receive in their home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study inherently disadvantages applicants from developing countries. For these reasons, the applicant contends that paragraph 12(c) of Direction 69 is inconsistent with the Regulations and, therefore, invalid. Consequently, the applicant submits the Tribunal fell into jurisdictional error by applying an invalid direction.
The Minister submits that the terms of the paragraph are directed to the value of the course to the applicant’s future, which the applicant does not suggest is not a ‘relevant matter’ for the purposes of sub-subcl 500.212(a)(iv). Further, the Minister submits that even if an applicant may earn more in Australia than in their developing home nation, that matter will not always weigh against the applicant. The Minister highlights that this is the circumstance in the present case, whereby the Tribunal reached its ultimate finding at [33] in the following terms:
The Tribunal finds that the applicant’s studies have value for his future in his home country (and in the UAR), but that they may have even more value in Australia. These circumstances provide some support for the applicant’s claim to be a genuine temporary entrant, but not strong support.
The Minister submits, and I accept, that a consideration of the amount an applicant could expect to earn in their home country or a third country is plainly relevant to the assessment of whether an applicant intends genuinely to stay in Australia temporarily. In my view, paragraph 12(c) is supported by the statutory scheme because it is not beyond the power for the delegate to consider such matters when assessing whether a person intends to genuinely stay temporarily in Australia.
Further, the applicant’s argument that the provision is discriminatory is based upon an erroneous assumption that remuneration an applicant may receive following the completion of their Australian qualifications will always be lower in overseas countries, including all developing nations. While this was indeed the Tribunal’s finding in this case, it was nevertheless a lawful and appropriate inquiry in the context of determining the value of the course to the applicant’s future as part of the broader question whether the applicant genuinely intends to remain temporarily in Australia.
At hearing, the applicant handed up ‘Direction No. 106 – Assessing the genuine entry and stay requirements for Student visa and Student Guardian visa applications’ (Direction 106), which commenced on 23 March 2024. While Direction 106 may well differ from Direction 69, it did not apply in this case (see Direction 106, Item 4) and can in no way be regarded as an extrinsic aid to interpret Direction 69 or otherwise challenge its validity in the sense that it is ultra vires.
Accordingly, no jurisdictional error arises in this regard and this ground must fail.
Ground 4 – Failure to Consider Evidence
By ground 4, the applicant contends that the Tribunal failed to consider the salary the applicant will be able to obtain in India with his qualifications as part of its consideration of the applicant’s circumstances in his home country.
The applicant drew my attention the following sentences in [22] of the Tribunal’s reasons:
Whilst there is no evidence of any economic circumstance that would provide him with a significant incentive to avoid returning to India, there is no evidence of any economic circumstance that would provide him with a positive incentive to return.
The applicant states that he did provide evidence to the Tribunal of an economic circumstance, both in the completed RSVI form and at hearing, in relation to the sort of money he expected to make with an accounting job in India and that this was an ‘economic circumstance’ that needed to be considered by the Tribunal when it made its assessment against the factor specified in paragraph 9(c) of Direction 69.
The Minister notes that at [32] of the Tribunal’s decision, when considering the applicant against the factors in paragraph 12 of Direction 69 which relate to the value of the course to the applicant’s future, the Tribunal had proper regard to the evidence relating to the remuneration the applicant could expect to receive in India:
The applicant was asked at hearing how much he could expect to receive working as an accountant in India with the qualifications he was seeking. His response was that he had no definite information on the point but thought that in India he could expect to make the equivalent of INR50,000 to INR60,000 per month (which on current exchange rates is the equivalent of approximately AUD93- to AUD1,120 per month, or AUD11,160 to AUD13,440 per annum). However, he also said that if he could find a position in the UAE, he thought he could make AED3,000 to AED4,000 per month, tax free. On current exchange rates, that is the equivalent of approximately AUD1,140 to AUD1,520 per month, or AUD13,680 to AUD18,240 per annum. The applicant’s evidence was that renumeration at this level would be considered very good in India and in the UAR respectively. He added that with his father’s connections in Qatar, he might well be able to find a position there. The Tribunal notes, however, that even making allowances for differing costs of living, the applicant could in all likelihood command a much higher salary using his qualifications (and particularly his Master of Professional Accounting, when he is finished it) in Australia.
At hearing, the Minister submitted that the phrase ‘economic circumstances’ in paragraph 9(c) of Direction 69 ‘must mean your current circumstances, not what you think you might earn in the future’.[18] When pressed by the Court to elaborate, the Minister made the following oral submission:
My point is simply that just on a natural reading, your ‘economic circumstances’ is talking about your current circumstances, your existing circumstances, not what you hope or expect to make in future.
[18] T39, 31-32.
When assessing ‘the applicant’s circumstances’ in the case of a primary applicant for a student visa, as required by sub-subcl 500.212(a)(i), paragraphs 6 and 7 make clear that regard must be had to three factors:
(a)the applicant’s circumstances in their home country (paragraphs 9 and 10 of Direction 69);
(b)the applicant’s potential circumstances in Australia (paragraph 11 of Direction 69); and
(c)the value of the course to the applicant’s future (paragraph 12 of Direction 69).
Consideration of the two latter factors clearly involves the making of findings of fact in relation the applicant’s circumstances at some future point in time. It is less clear whether such a temporal element towards fact-finding is required when assessing the applicant’s circumstances in their home country against each of the factors in paragraphs 9 and 10 of Direction 69.
Paragraph 9(c) of Direction 69 provides:
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;
I am not persuaded by the Minister’s submissions in relation to this ground. It is clear that any assessment of the economic circumstances of the applicant may include consideration of the applicant’s circumstances relative to the home country and to Australia. However, there is nothing in the wording of paragraph 9(c) that excludes any consideration of the applicant’s future economic circumstances when assessing whether they would present as a significant incentive not to return to the applicant’s home country.
By way of having regard to the factors in Direction 69 when reaching a state of satisfaction in relation to cl 500.212(a), the Tribunal is not required to refer to every submission and piece of evidentiary material put forward by the applicant. The Tribunal’s decision must set out its reasons and the findings on any material questions of fact and it ‘must refer to evidence or any other material on which the findings of fact are based’: Kumar v Minister for Immigration and Border Protection [2020] 274 FCR 646; FCAFC 16 at [93]-[96].
In my view, the Tribunal did not overlook the evidence relation to the applicant’s potential future earnings in India. On a fair reading of the Tribunal’s reasons as a whole, I infer that the findings made in relation to the applicant’s economic circumstances made no specific reference to the evidence in relation to the applicant’s future earnings at [22] of its reasons because, in the Tribunal’s view, it was not necessary to do so. Relevantly, the Tribunal raised two findings at [22] of its decision which relate to the evidence before it in relation to the applicant’s economic circumstances for the purposes of paragraph 9(c):
(a)‘there is no evidence of any economic circumstance that would provide the applicant with a significant incentive to avoid returning to India’ (the first finding);
(b)‘there is no evidence of any economic factor or circumstance that would provide [the applicant] with a positive incentive to return [to India]’ (the second finding).
It cannot be inferred that the Tribunal ignored or overlooked the applicant’s evidence when making each of these findings. In relation to the first finding, it was open for the Tribunal to not have regard to that evidence pertaining to the applicant’s future income in India as it was irrelevant to the question as to whether the applicant had a significant incentive not to return to India. In relation to the second finding, I infer that the Tribunal did have regard to the applicant’s future income in India but simply did not find that to be an economic factor or circumstance which provided him with a positive incentive to return to India. That inference may be drawn from the Tribunal’s reasons at [32] where the Tribunal compared the applicant’s future remuneration in both India and Australia and found that that he would be more likely to earn more in Australia than India. The inference is also supported by the wording of paragraph 9(c) of Direction 69 which permits ‘consideration of the applicant’s circumstances relative to the home country and to Australia’. Accordingly, I conclude that the Tribunal did not err in this regard.
Even if I am wrong and the Tribunal was in error, I do not find that error to be material. At [32], the Tribunal compared the applicant’s future remuneration in both India and Australia and ultimately found:
that even making allowances for differing costs of living, the applicant could in all likelihood command a much higher salary using his qualifications (and particularly his Master of Professional Accounting, when he is finished it) in Australia.
Assuming the Tribunal was required to take into account the applicant’s evidence in relation to his potential earnings in India when considering his future economic circumstances for the purposes of its assessment of the applicant’s circumstances against paragraph 9(c), and did not do so, its ultimate finding at [32] clearly indicates that had this matter been taken into account it would not have lent any greater support to the applicant’s claim to be a genuine temporary entrant. On that basis, in the event that an error was made by the Tribunal in failing to consider this evidence as contended by the applicant for the purposes of any assessment to be made of the applicant’s circumstances against paragraph 9(c), that error was not material as the Tribunal’s decision could not ‘realistically’ have been different: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [14].
Accordingly, this ground must fail.
CONCLUSION
For the above reasons, the application filed on 4 September 2020 is dismissed.
I will hear the parties in relation to costs.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 19 December 2024
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