Kader v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 122
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kader v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 122
File number: PEG 264 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 28 February 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take into account relevant information – whether the Tribunal took into account irrelevant information – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 359 and 476
Migration Regulations 1994 (Cth), cll 500.212 and 500.311 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1861
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 21 January 2022 Place: Perth Applicants: First and second applicants, in person Counsel for the First Respondent: Mr P Hannan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 264 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAHENA BEE KADER
First Applicant
MOHAMMAD EERFAN SIDDICKI KADER
Second Applicant
INAAYA SIDDIQAH KADER
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 FEBRUARY 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 6 August 2020.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicants’ application for review according to law.
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 KENDALL:
BACKGROUND
The applicants are citizens of Mauritius (Court Book (“CB”) 18, 21 & 23). The first and second applicants are wife and husband respectively (CB 19-21). The third applicant is their daughter (CB 22-23).
The first applicant arrived in Australia in February 2013 (CB 119) as the holder of a Student (Temporary) (Class TU) (subclass 570) visa (CB 93). She was subsequently granted a further four onshore Australian visas (CB 93).
On 30 April 2019, the first applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa (the “visa”) (CB 17-45). The second and third applicants were included in that application as members of the first applicant’s family unit. Attached to that application were a number of supporting documents. These included a completed Form 1229 for the third applicant, identity documents for the applicants, an overseas health cover receipt, PTE Academic Test Taker Score Reports for the first applicant, the first applicant’s educational records and an Overseas Student Confirmation-of-Enrolment (“CoE”) (CB 46-69).
On 3 July 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 80-86). The delegate was not satisfied that the first applicant met cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the first applicant genuinely intended to stay temporarily in Australia (CB 83). Consequently, the delegate was not satisfied that the second and third applicants met cl 500.311 of Schedule 2 of the Regulations.
On 11 July 2019, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 87-89). That application included the contact details for the applicants’ registered migration agent (CB 88-89).
On 21 November 2019, the Tribunal invited the applicants to provide further information in relation to the first applicant’s enrolment in a registered course of study and information addressing the genuine temporary entrant criteria (CB 107-116). In response, the applicants submitted to the Tribunal a completed “Request for Student Visa Information” form
(CB 117-126).
On 16 June 2020, the Tribunal invited the applicants to attend a hearing scheduled for 16 July 2020 (CB 127-146). The applicants were advised that, in order to “slow the spread of COVID-19”, the hearing would be conducted via telephone (CB 130).
On 13 July 2020, the applicants (through their registered migration agent) provided written submissions to the Tribunal (CB 153-164). Included with those submissions were supporting documents. These included a course progress statement, CoE’s, bank statements, a letter of sponsorship from the first applicant’s father, company incorporation documents, extracts from a Heritage Foundation document titled “Highlights of the 2020 Index of Economic Freedom”, the first applicant’s Genuine Temporary Statement, plane tickets, a bundle of photographs and the first applicant’s academic records (CB 165-210).
On 16 July 2020, the first and second applicants appeared before the Tribunal with their registered migration agent (CB 212-214).
On 6 August 2020, the Tribunal affirmed the decision not to grant the applicants the visa (CB 221-233).
On 9 September 2020, the applicants applied for judicial review of the Tribunal’s decision in this Court (CB 1-6). The first applicant deposed and filed an affidavit in support of that application (CB 7-9). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 13 pages long and spans 53 paragraphs. Attached to the decision is six pages comprising Ministerial Direction No. 69 - Assessing the Genuine Temporary Entrant Criterion for Student visa and Student Guardian Visa Applications (“Ministerial Direction”), made under s 499 of the Act.
The Tribunal first identified the type of visa the applicants were seeking, outlined the visa application history and summarised the delegate’s decision (at [1]-[3]). The Tribunal confirmed that the applicants had been invited to provide further information pursuant to s 359(2) of the Act (at [4]) and noted that the applicants provided further information to the Tribunal on the 5 December 2019 (at [5]).
The Tribunal detailed the further material provided by the applicants as follows:
6.The applicants provided 10 documents in total to the Tribunal on the 13 July 2020 including but not limited to: Certificates that the first named applicant has completed, statement from her father, statement from her migration representative, bank statement of funds in Mauritius, and documents regarding her father’s business.
The Tribunal noted that the first and second applicants appeared at a hearing before it on 16 July 2020 (at [7]) and were assisted by their registered migration agent (at [8]).
The Tribunal then identified the issue before it and outlined the relevant legislative provisions as follows:
CONSIDERATION OF CLAIMS AND EVIDENCE
10.The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
Genuine applicant for entry and stay as a student (cl.500.212)
11.Clause 500.212 requires as follows:
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.
Does the applicant intend genuinely to stay in Australia temporarily?
12.In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
13.The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal then considered the evidence before it, noting that the first applicant had arrived in Australia in 2013 on a student visa and had applied for a total of six student visas (including the visa under review) (at [14]).
The Tribunal then outlined the first applicant’s educational history prior to arriving in Australia and the applicant’s familial connections in Mauritius, explaining that the applicant’s father “was aware that she planned to remain in Australia to finish further courses until January 2023” (at [16]-[18]). The Tribunal also noted that the applicants’ representative had indicated that the first applicant intended to finish her course at the end of 2020 (at [19]).
The Tribunal detailed the first applicant’s evidence as follows:
20.The first named applicant stated in her written material in her Form 17 submitted to the Tribunal as follows: “I have completed a course in Community Services Work which I can use to help the elderly people in my country as part of social work that interest me a lot. I have always been motivated by helping others. I find myself as someone who like heling people in need. After completion of my Community Services Course at TAFE, I have realised that I can use the knowledge gained in the course to help others on a voluntary basis but I also need to work for a living in this job. I am more business oriented and would like to work in Mauritius in the child care industry for a couple of years only to get some local experience and to know the law in my own country regarding child care and working with young children. After the required experience, I intend to open my own child care centre and to get staffs to work for me under my management”.
21.The Tribunal finds her explanations hard to follow as they are all generalised statements and there is no indication that she has researched the viability of such a proposition. Apart from her work placements there is no evidence that the first named applicant has ever worked in any field. If she was genuine about opening a childcare centre, she would have at least tried to get some work experience in the industry.
22.The changes in her studies indicates that she may be just studying low level and inexpensive courses at VET level so that she can maintain residence in Australia. The Tribunal is not satisfied that the applicant isn’t simply now proposing further short inexpensive courses in order to gain a student visa with the primary objective of maintaining ongoing residence in Australia.
The Tribunal was not satisfied that the first applicant’s proposed study would assist with or improve her employment prospects (at [23]).
The Tribunal noted that:
24.The evidence from her father and the statement made by her representative did not match the information supplied by the applicant. The date that she proposes to complete her courses appear to be 2023 and her evidence is confusing.
The Tribunal then considered the first applicant’s previous travel history (at [25]), her familial ties to Mauritius (at [26]-[27]), and her evidence that her father will provide her with financial support upon her return to Mauritius (at [28]).
The Tribunal found as follows:
29.The Tribunal finds that she does not appear to have stronger family ties in Mauritius that will serve as a significant incentive for her to return to her home country. This is because the two members of her family that she is closest to, namely her husband and her daughter are both residing with her in Australia. The Tribunal places a lot of weight on those facts against the applicant’s case.
The Tribunal noted that the first and second applicants had funds in a bank account in Mauritius but found this to be “a moveable asset” (at [30]).
The Tribunal then outlined the courses that the first applicant had completed in Australia – being General English; Certificates III and IV in Community Services; a Diploma in Community Services; a Certificate III and a Diploma in Early Childhood Education and Care; another course in General English; and, a Diploma in Social Media and Marketing
(at [31]-[33]).
The Tribunal noted that, at the time of its decision:
34. She is now studying a Diploma in Business and expects that this will be completed on the 16 October 2020.She is proposing to complete an Advanced Diploma in Business followed by a Diploma in Project management. If she is permitted to continue with her studies the applicant will remain in Australia until the 6 January 2023. As she originally arrived in Australia on the 6 February 2013, it will mean that the applicant would have spent 10 years in Australia.
35.Whilst she was completing her studies, she applied for other courses at the beginning of her stay that she cancelled. She had originally planned to complete a packaged course in Accounting including a Certificate IV, Diploma of accounting and an advanced Diploma in Accounting. These courses were cancelled as she chose to study a Certificate III and Certificate IV in Community Services followed by a Diploma in Community Services which she completed on the 18 of December 2015.
The Tribunal then outlined the first applicant’s other study history in Australia (at [36]-[38]).
The Tribunal then considered the first applicant’s future plans, finding as follows:
39.She says that when she returns to her home country that she plans to open a childcare centre and she will be targeting the upper classes in a rural area. She told the Tribunal that she worked hard in her placements. The Tribunal accepts her evidence as it does appear that she has been placed in short term placements in various childcare centres whilst working in Australia. The Tribunal does take into consideration that she has progressed satisfactorily academically in her studies in Australia.
40.However, the Tribunal is of the view that if she truly intends to return to her home country and work in the field of child care she would have already left the country to gain experience in her field in her home country. She does not appear to have secured part time employment in her chosen industry whilst studying in Australia save for work placements.
The Tribunal then considered the first applicant’s work history in Australia, noting that the first applicant had completed a number of work placements during her time in Australia (at [41]-[42]).
The Tribunal noted that:
43.The first named applicant has not demonstrated that she is really going to be engaging in the workforce when she returns to her home country. If she was truly keen to open a childcare centre after she graduated, she would have at least tried to work in that field to gain experience whilst in Australia. She might have to care for her child, but she should have the assistance of her husband who only works on a part time basis.
44.She says that her husband works part time as a cleaner and that he earns about $500 to $1000 a fortnight.
The Tribunal continued:
45.When asked what she plans to do in the future she stated that she had worked hard in her study work placements and that she is happy to go back to her home country. She then said that she wishes to learn how to open a business and it is for this reason that she is studying the present courses. The Tribunal does not accept her explanations as her oral evidence was generalised and repetitious.
46.She said that she studied the social media unit as she wanted to do her own marketing for her business.
47.The Tribunal does not accept her explanations that she plans to work in that field when she returns to Mauritius as she does not appear to have a strong work ethic as she has no work experience on a full time or part time basis since graduating from any of her courses in the entire of her life.
48.The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia temporarily. Given the amount of time that the first named applicant has remained in Australia on student and a bridging visa, the Tribunal is concerned that a further student visa may be used primarily to maintain ongoing residence.
The Tribunal noted that the applicant does not have to complete military service and there is no political and civil unrest in her home country (at [49]).
The Tribunal then stated:
50.The Tribunal does not have any evidence to consider the following factors: whether the first named applicant has sound reasons for not undertaking the courses in her home country, remuneration the applicant could expect to receive in Mauritius or a third country compared to Australia, circumstances in Mauritius relative to Australia or any other country and the applicants’ circumstances in Mauritius relative to others in that country.
The Tribunal explained that the second and third applicants had applied for a visa on the basis of being members of the first applicant’s family unit (at [51]).
The Tribunal ultimately found that the first applicant did not meet the criteria for the grant of the visa (at [52]). On that basis, the Tribunal affirmed the decision to refuse the applicants the visa (at [53]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicants on 9 September 2020 contains two grounds of review as follows:
1.Incorrect information was considered in the review of my case.
2.I believe that some of the information considered in the review is incorrect to such a great extent that I believe it may belong to a completely different person.
The applicants also filed an affidavit deposed by the applicant and filed on 9 September 2020 which attached a copy of the Tribunal’s decision.
The applicants were given an opportunity to file an amended application, any affidavit evidence and written submissions.
On 7 October 2021, the first applicant sent an email to the Court which attached an electronic copy of the first applicant’s academic record.
The matter was initially listed for a hearing before this Court on 7 October 2021. At that hearing, the first and second applicants appeared in person. Mr Peter Hannan of counsel appeared for the Minister. A discussion was had with counsel at that hearing about some concerns the Court had with the Tribunal’s decision which, arguably, were not addressed in the written submissions filed by the Minister on 22 September 2021. Mr Hannan sought more time to file further submissions. The Court thanks him for his assistance in this regard.
Orders were made for the filing of further submissions and the hearing was adjourned. Further written submissions were filed on behalf of the Minister, pursuant to those orders, on 21 October 2021.
The materials before the Court thus include the application for judicial review dated and filed on 9 September 2020, the first applicant’s affidavit dated and filed on 9 September 2020, a Court Book numbering 233 pages (marked as Exhibit 1), written submissions filed by the Minister on 22 September 2021, further written submissions filed by the Minister on 21 October 2021 and the first applicant’s academic record (marked as Exhibit 2).
The first and second applicants appeared before the Court at the resumed hearing on 21 January 2022 without legal representation. The Court confirmed that they had received a copy of the Court Book and both sets of the Minister’s written submissions. The second applicant spoke on behalf of the applicants. The Minister was again represented by Mr Hannan.
Noting that the applicants were unrepresented, the Court gave the second applicant an opportunity to explain orally what he thought the Tribunal “did wrong”: as per Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained to them that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, in relation to migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the second applicant stated that their main concern with the Tribunal’s decision was that the courses referenced by the Tribunal at [35] (being a Certificate IV, a Diploma and an Advanced Diploma in Accounting) do not appear to relate in any way whatsoever to the first applicant (who “had no intention to ever enrol in or study those courses”). In effect, the applicants are of the view that the Tribunal relied on irrelevant material when concluding as it did.
This issue will be considered by the Court below.
The second applicant also explained to the Court that the applicants had “extra evidence to provide” (which, they explained, they were not able to provide to the Tribunal). That evidence relates to the purchase of land in Mauritius and their “plans in place to start their own business” – plans which have been delayed “because of COVID”. Unfortunately, as this information was not information that was before the Tribunal, the Court is not able to consider that material on review because it does not go to the issue of jurisdictional error.
RELEVANT LEGISLATION
In this matter, the Tribunal was required to consider whether the first applicant satisfied cl 500.212(a) of Schedule 2 of the Regulations. Specifically, the Tribunal needed to assess whether the first applicant genuinely intended to stay in Australia temporarily.
It is useful to set out cl 500.212 of Schedule 2 of the Regulations which, at the time of the Tribunal’s decision, provided 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.
In order to assess whether the first applicant satisfied cl 500.212 of Schedule 2 of the Regulations, the Tribunal must have regard to the Ministerial Direction which provides as follows:
Preamble
…
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends 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.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily.
CONSIDERATION
Having read materials in the Court Book in detail, and having now heard from the parties, the Court has determined that two issues arise for considerations by the Court. These issues relate to whether the Tribunal, when assessing the first applicant against the genuine temporary entrant criteria:
(1)failed to take into account relevant information; or
(2)took into account irrelevant information.
Whether the Tribunal failed to take into account relevant information
At the first hearing of this matter listed on 7 October 2021, the Court asked Mr Hannan to address an issue regarding a potential failure to consider relevant material. Specifically, the Court asked Mr Hannan to make submissions in relation to paragraph [50] of the Tribunal’s reasons where the Tribunal makes particular reference to factors for which no evidence was provided.
In that regard, the Tribunal stated (emphasis added):
50. The Tribunal does not have any evidence to consider the following factors: whether the first named applicant has sound reasons for not undertaking the courses in her home country, remuneration the applicant could expect to receive in Mauritius or a third country compared to Australia, circumstances in Mauritius relative to Australia or any other country and the applicants’ circumstances in Mauritius relative to others in that country.
By way of background, the Court notes that on 13 July 2019, three days before the Tribunal hearing, the applicants’ migration agent provided additional material to the Tribunal for consideration, including a statement from the applicants’ migration agent. This statement attached a number of documents (including Attachments D and E) and stated (CB 158-160):
It is important here to note that there will always be disparity in economic circumstances between Australia and the rest of the world. Australia is one of the six free nations of the world as per the key findings of the 2020 Index of Economic Freedom by the Heritage Foundation. Please see Attachment D(1): 2020 Index of Economic Freedom Highlights:
•Rule of Law (property rights, government integrity, judicial effectiveness)
•Government Size (government spending, tax burden, fiscal health)
•Regulatory Efficiency (business freedom, labor freedom, monetary freedom)
•Open Markets (trade freedom, investment freedom, financial freedom)
Each of the twelve economic freedoms within these categories is graded on a scale of 0 to 100. A country’s overall score is derived by averaging these twelve economic freedoms, with equal weight being given to each.”
Australia is ranked 4th out of 186 countries in the world with an overall score of 82.6 in the 2020 Index. Mauritius is ranked 24th out of the 186 countries in the world with an overall score of 74.9. One of the key findings of this index was that Mauritius is the regional leader of the sub-Saharan African region and is ranked 1st out of the 47 countries in the Sub-Saharan African region and the overall score of Mauritius is above the regional and world averages. Please see Attachment D (2): Mauritius Profile and Attachment E: 2020 Index of Economic Freedom Graph.
Mauritius is a safe and beautiful island and a major tourist destination with beautiful and sandy beaches. Mauritius is a multicultural island with no discrimination whatsoever and is also a very stable country with strong economic opportunities as stated above. There is no war or civil unrest in Mauritius. It is a peaceful and safe place. Mauritius offers free education to its citizens from kindy to university and Mauritian citizens have access to free medical services, including hospitalisation, treatment and all prescribed medication by the hospitals are free of charge.
…
The applicants are here on temporary visas and do not own any assets in Australia. The applicant has strong family and economic ties back home. As explained above, Mauritius is a thriving island with endless opportunities and while it may not be at the same level as Australia, it certainly fares much better than the rest of the world for a small island that is a dot in the world map. The economic circumstances of the applicant in Australia is limited as they are on temporary visas and cannot even buy a house or own a block of land. They are much better off in Mauritius. It will take them many years to consider owning a property in Australia and it will be harder to repay a mortgage, which is such a big financial responsibility in Australia.
The Minister, in written submissions, stated as follows:
69.No doubt, His Honour Judge Kendall raised the PARA 50 Issue with cases such as Kouro at [32] & [41] in mind.
70.The Minister respectfully contends that the principle underlying such cases does not apply in the present case.
71.At CB 226 [50], the AAT Decision lists 4 matters about which the AAT said there was no evidence:
(1)Whether Mrs Kader has sound reasons for not undertaking the courses in Mauritius. Note MD 69 [9] (a) at CB 231.
(2)The remuneration Mrs Kader could expect to receive in Mauritius or a third country compared to Australia. Note MD 69 [6] at CB 231.
(3)Circumstances in Mauritius relative to Australia or any other country. Note MD 69 [9] (c) at CB 232.
(4)Mrs Kader’s circumstances in Mauritius relative to others in Mauritius. Note MD 69 [10] at CB 232.
72.As to the matter referred to in para 71 (1) above, there was only vague assertion in the statements at CB 123 (top of page), CB 126 (top of page), CB 164 (paras above heading “Conclusion”), CB 186 (last 4 lines), CB 188 (9th & 10th lines on page) & CB 191 (5th line on page).
73.As to the matter referred to in para 71 (2) above, there was only a vague reference to that matter at CB 123 (top of page) & CB 126 (top of page).
74.As to the matter referred to in para 71 (3) above, there was only a high level of generality reference to that matter at CB 158 (last 8 lines), CB 159, CB 160 (top of page) & CB 179 - 184.
75.As to the matter referred to in para 71 (4) above, there is nothing in the Court Book which expressly addresses that matter.
76.Any criticism of the AAT Decision must be considered in the context of the course of the decision-making process and, in particular, the approach Mrs Kader has taken within that process. See Kouro at [5].
77.Infelicitous language used by the AAT must be considered in the light of a judicial review court’s obligation to read administrative reasons with an eye not too finely attuned to error detection. See ALO19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 228 at [29]; EGH19 v Minister for Home Affairs [2020] FCA 692 at [56] (j).
At the second hearing of this matter (on 21 January 2021), Mr Hannan conceded that, while he stated at [75] of his submissions that there was no information about the first applicant’s circumstances in Mauritius (relative to other persons living in Mauritius) and said that there was “nothing in the CB which expressly addressed that matter”, he had “perhaps slightly overstated it”. Mr Hannan acknowledged that there is, in fact, reference in the Court Book to the first applicant’s father being a very successful businessperson in Mauritius and as being “a man of some substance”. Mr Hannan acknowledged that it might be inferred from that information that the first applicant “is not without means”. The Court notes that that information (relating to the first applicant’s father) is contained in submissions provided by the applicant’s representative (CB 158).
In determining whether the Tribunal has overlooked relevant material, the Court is assisted by the decision in Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1861 per Derrington J (“Kouro”).
Relevantly, Justice Derrington found as follows in Kouro:
37The extent of the evidence that was before the Tribunal has been summarised above at paragraph [34]. As observed by the primary judge (FCC Reasons [22]), the appellant had provided the Tribunal with limited information and there was very little evidence before the Tribunal. The Tribunal was correct to record that there was indeed no relevant evidence in respect of some of the factors referred to by the Tribunal at [17] – being those outlined above at [32] (i), (iv), (v), (vi), (x) or (xi). Nevertheless there was at least some evidence relevant to the other matters and which had not been mentioned by the Tribunal in [14]. That evidence included: the certificates of the various properties in his father’s name and the representation that he would inherit those properties; the evidence that he had already completed his military service; the representation that he had “no one in Australia”; and the evidence that his wife, child and parents reside in Greece. This gives rise to the inference that the Tribunal did not in fact consider the claims or the evidence that were before it.
38Again, in Kumar, when considering the predecessor to Direction 69, the Full Court said, at [83]-[84]:
83. In Direction 53, where it provides that the decision-maker “must have regard to” the factors mentioned, the phrase – read in context – means that the decision-maker should turn his or her attention to each factor during the decision-making process and consider whether and how it should be brought to bear in reaching the decision. As Colvin J explained in Jan at [26]:
[T]he Tribunal must advert to [the factors] for the purpose of considering whether they should be brought to bear, but if the Tribunal forms the view that they are not significant in the particular case then they can be put to one side based upon that assessment. The Tribunal is not obliged to go down and check off each one irrespective of the circumstances and bring it to account in its reasons.
The word “advert” is there being used to indicate that the matter should be considered in the decision-making process: whether it should be adverted to in the statement of reasons is a different question. See also: Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 at [23] (Perry J); Bala at [17].
84. Where a decision-maker is required to have regard to several mandatory considerations, he or she must actively engage with each of the considerations by determining how and to what extent, if at all, each of them might feed into the deliberative process and ultimate decision: Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, at [47]–[54]; Khadgi at [63]. The consideration of the factor in the process of reaching a decision must be genuine: Tickner v Chapman (1995) 57 FCR 451 at 462 and 464 (Black CJ), 476 (Burchett J), 495 and 496 (Kiefel J); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]; Khadgi at [57].
39The Tribunal was obliged to consider those claims and the evidence before it and to actively engage with each of the factors by determining how and to what extent, if at all, each of them might feed into the deliberative process and the ultimate decision: Kumar at [84].
40The Tribunal took into consideration the fact that the appellant had no current enrolment in a course of study and that, despite being onshore since 2016, he has not successfully completed a qualification ([15]-[16]). Although the weight to be given to the various factors mentioned within Direction 69 is a matter for the decision maker alone (Kumar at [85]), the Tribunal must at least bring to account in the decision-making process those factors considered to be sufficiently material to the decision. As the High Court observed in ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003, at [14], “there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review”.
41The plain, unequivocal words of the Tribunal that there was no relevant evidence about a range of factors in Direction 69, and which the Tribunal thought fit to mention, leads to the clear inference that the Tribunal overlooked, or chose not to consider, any material other than that contained in the Request for Student Visa Information Form under s 359(2). Contrary to the conclusion reached by the primary judge, by ignoring relevant material, the Tribunal has made a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[84].
In this matter, as in Kouro, the Tribunal made a clear finding at [50] of its reasons that it did not have any evidence to consider a number of factors. Those factors included:
(a)whether the first applicant had sound reasons for not undertaking the courses in her home country;
(b)remuneration the applicant could expect to receive in Mauritius or a third country compared to Australia;
(c)circumstances in Mauritius relative to Australia or any other county; and
(d)the applicants’ circumstances in Mauritius relative to others in that country.
The Court, however, is satisfied that the Tribunal did indeed have evidence before it which arguably addressed (c) and (d) above.
As Mr Hannan rightly conceded, the applicants’ representative does address the first applicant’s circumstances in Mauritius and the assistance she will receive from her father as follows:
The applicant’s economic ties in Mauritius is also stronger than in Australia as the applicant has funds in Mauritius in her name (See Attachment B: Personal Bank Statement in Mauritius) and being the only daughter (of two children) for her parents, she will also inherit 50% of her parents’ properties in Mauritius. The applicant’s father is a renown, successful businessman, importer, wholesaler and distributor of spices all over the island. The applicant’s father intends to purchase a block of land for the applicant and build a daycare facility to support the applicant while she is studying in Australia. Please see Attachment C: Sponsorship letter, bank statement and most recent documents.
Arguably, it might be inferred from the statements above (and the supporting documents provided) that the first applicant’s father is a man of means and, through him (and with his support) the first applicant is “not without means”.
The applicants’ representative also draws comparisons between Australia and Mauritius (CB 159), noting that “Australia is ranked 4th out of 186 countries in the world…” whilst “Mauritius is ranked 24th out of the 186 countries in the world”. The submissions go on to reference “Attachment D (2): Mauritius Profile and Attachment E: 2020 Index of Economic Freedom Graph” and describe the circumstances in Mauritius more fully.
While some of the submissions made about Mauritius are uncorroborated, the Tribunal was still required to engage in an active intellectual consideration of those submissions and clear consideration should certainly have been given to “Attachment D (2): Mauritius Profile and Attachment E: 2020 Index of Economic Freedom Graph”, which were provided to the Tribunal.
The Tribunal might have determined that the material was irrelevant to its decision before it or that it was of little value but it did not do so.
Instead, the Tribunal clearly and specifically stated that it did “not have any evidence to consider” the factors. As was the case in Kouro, the clear words of the Tribunal that there was no evidence to be considered leads to the clear inference that the Tribunal either overlooked or chose not to consider the material contained in the submissions and attachments outlined above. By doing so, the Tribunal has failed to address material that is arguably relevant.
In so doing, the Tribunal has fallen into jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (“Yusuf”) at [82]-[84].
Whether the Tribunal took into account irrelevant information
Grounds 1 and 2 in the applicants’ application for judicial review provide:
1.Incorrect information was considered in the review of my case.
2.I believe that some of the information considered in the review is incorrect to such a great extent that I believe it may belong to a completely different person.
In effect, these two “grounds of review” raise the same issue. As outlined above, the second applicant expanded on these grounds at the hearing, explaining that some of the information contained in [35] of the Tribunal’s reasons does not relate to the first applicant.
The second applicant explained that “information relating to enrolment in or cancellation of accounting courses” has nothing to do with the first applicant. He told the Court that the second applicant has never had any intention of pursuing any accounting related studies and, in effect, has no idea what the Tribunal is referring to or where that information came from.
It is useful to set out the Tribunal’s reasons in that regard, which provide (emphasis added):
35.Whilst she was completing her studies, she applied for other courses at the beginning of her stay that she cancelled. She had originally planned to complete a packaged course in Accounting including a Certificate IV, Diploma of accounting and an advanced Diploma in Accounting. These courses were cancelled as she chose to study a Certificate III and Certificate IV in Community Services followed by a Diploma in Community Services which she completed on the 18 of December 2015.
The Court asked Mr Hannan at the hearing if he wished to comment on the applicants’ concern in this regard and queried whether there was, in fact, any material in the Court Book that suggested or demonstrated that the first applicant was enrolled in or intended to pursue any courses relating to the field of accounting.
Mr Hannan indicated that he “thought” he had “come across a reference” but was “unable to locate it”. At the end of the hearing, Mr Hannan suggested that he would, upon returning to his office, again review the Court Book and then contact the Court if he was able to locate any such reference. No correspondence was received from Mr Hannan or his instructors in this regard, either on the day of the hearing or to date.
The Court has itself reviewed the materials before it and has been unable to locate any reference to accounting courses (save for the reference at [35] in the Tribunal’s reasons outlined above).
The applicants are adamant that the first applicant did not enrol in the accounting courses detailed by the Tribunal at [35] in its reasons. There is no information whatsoever before this Court to suggest that the first applicant was enrolled or intended to enrol in any accounting program (for example a CoE or letter of offer).
In the circumstances, the Court can only infer that the course information referenced relates to someone other than the first applicant. This is an unusual error in an otherwise well written decision. It is, however, an error all the same.
Here, the Tribunal has relied on, or taken into account, irrelevant information. The extent to which the Tribunal relied on that information is not known as the Tribunal does not apportion any weight to it. In any event, that is not the question before this Court. The relevant question is: did the Tribunal take into account irrelevant material?
Based on the information above, it is clear that the Tribunal had regard (to some extent) to information which does not relate to the first applicant. In doing so, the Tribunal has erred by taking into account irrelevant material and has, by doing so, fallen into jurisdictional error: Yusuf at [82]-[84].
Grounds 1 and 2 have identified a further jurisdictional error on the part of the Tribunal.
DECISION
The application for judicial review filed by the applicants on 9 September 2020 has identified jurisdictional error. The Court has itself identified an additional jurisdictional error.
The Tribunal’s decision will be set aside and the matter will be remitted for rehearing.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 February 2022
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