Kakkar v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 508
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kakkar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 508
File number: MLG 780 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 6 June 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal to affirm a decision not to grant the applicant a student visa – whether the Tribunal failed to consider an integer of a claim which clearly arose from the material before it – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth), Sch 2, cl 500.212
Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Kaur v Minister for Home Affairs [2019] FCA 2026
Kumar v Minister for Immigration and Border Protection [2021] FCCA 1336
NABE v Minister for Immigration and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 143
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 23 May 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr S Sharify Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr R O’Shannessy Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 780 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAURAV KAKKAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs in the amount of $9,371.30, comprising:
(a)costs of the proceedings in the amount of $8,371.30; and
(b)costs thrown away in the amount of $1,000 relating to the late amendment of the application.
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 LADHAMS:
INTRODUCTION
The applicant is a non-citizen who applied for a student visa. A delegate of the Minister refused to grant the applicant a student visa and the delegate’s decision was affirmed by the Administrative Appeals Tribunal (Tribunal). The application before the Court is an application for judicial review of the Tribunal decision, in the exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on a single ground of application alleging that the Tribunal erred by failing to take into account an integer of a claim which clearly arose from the material before it. That integer related to whether the applicant’s economic circumstances, in addition to not presenting as a significant incentive for the applicant not to return to his home country (as found by the Tribunal), would present as a significant incentive for him to return (or be a ‘pull factor’, as described by Counsel for the applicant).
For the reasons explained below, I have found that the applicant has not established that the Tribunal made the jurisdictional error alleged. The application for judicial review must therefore be dismissed.
THE APPLICANT’S VISA HISTORY AND ADMINISTRATIVE DECISIONS
The applicant spent time in Australia between 2007 and 2009 as the holder of a student visa. He returned to Australia in September 2014 on a further student visa. The applicant applied for the student visa relevant to this judicial review application on 11 May 2017.
A delegate of the Minister refused to grant the applicant a student visa on 26 July 2017. The delegate found that the applicant did not genuinely intend to stay temporarily in Australia and therefore did not meet cl 500.212(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 15 August 2017 the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant attended a hearing before the Tribunal on 4 March 2019 to give evidence and present arguments.
On 8 March 2019 the Tribunal affirmed the delegate’s decision not to grant the applicant a further student visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the applicant intended genuinely to stay in Australia temporarily, as required by cl 500.212 in Schedule 2 to the Regulations, which provides:
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.
The Tribunal identified that it must have regard to Ministerial Direction No 69 in considering whether the applicant satisfied the genuine temporary entrant criterion in cl 500.212(a), while noting that the Direction indicates that the factors specified should not be used as a checklist, and rather are intended to guide decision-makers when considering an applicant’s circumstances as a whole.
The Tribunal set out the applicant’s education history and identified three significant issues, namely:
(a)the gap in the applicant’s study from March 2017 to October 2018, being over 18 months;
(b)the period of time that the applicant had spent onshore, being nearly seven years; and
(c)the very limited value the proposed courses would have to the applicant’s future career plan.
The Tribunal recorded that the applicant’s evidence was that he wanted to run a hairdressing salon in his home town in India. The Tribunal noted that the applicant had already undertaken three courses in business and did not accept that the proposed additional courses in leadership and management were necessary for the applicant to return to India and run a successful hairdressing salon.
While the Tribunal accepted the applicant’s evidence that leadership and management courses may not be offered in his home town in India, this was outweighed by the limited additional benefit such courses offered the applicant in his ultimate career goal.
The Tribunal found that the applicant’s personal ties in India served as a significant incentive for him to return. The Tribunal considered that the applicant’s economic circumstances in Australia relative to India were ‘not presenting as a significant incentive for the applicant not to return to India’. The Tribunal found that the applicant did not have ties with Australia that presented as a strong incentive to remain in Australia.
The Tribunal considered that the qualifications gained from the additional proposed courses of study would not add value to the applicant’s future.
The Tribunal recorded that the applicant made detailed submissions and gave evidence in relation to being misled by a migration agent. The Tribunal had empathy for the applicant’s experience with a fraudulent migration agent and accepted that his initial difficulties with the agent were out of the applicant’s control. However, the Tribunal considered that the applicant’s experience of being misled by a migration agent did not explain his lengthy lack of academic progress while living in Australia in 2017 and 2018, noting it was the visa holder’s responsibility to ensure they complied with their visa conditions. Given the length of time that the applicant was not studying at all in 2017 and 2018, the Tribunal placed some limited weight against the applicant in his application for review.
The Tribunal accepted the applicant’s evidence that he had not had any other adverse visa or travel history involving refusal or non-compliance, and that there were no military service obligations or political or civil unrest issues in India for him, and gave weight in the applicant’s favour in this regard.
The Tribunal considered that the limited value of the applicant’s proposed studies to his career in hairdressing and the length of time the applicant had been onshore, even accounting for his five year departure from 2009, were of significant concern. The Tribunal found that the applicant was using the student visa program to maintain ongoing residence in Australia. The Tribunal placed considerable weight on these factors and was not satisfied that that the applicant intended genuinely to stay in Australia temporarily.
The Tribunal therefore found that the applicant did not meet cl 500.212(a) in Schedule 2 to the Regulations and was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 19 March 2019 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant filed an amended application on 15 April 2024 which contains the following ground of application:
The Tribunal erred by failing to take into account an integer of a claim which clearly arose from the material.
Particulars
(a)The Tribunal found at [23] that the applicant’s economic circumstances was not a disincentive for the applicant to return to India.
(b)The Tribunal failed to consider whether the applicant’s economic circumstances would make it more likely that the applicant would return to India.
The evidence before the Court comprises a court book filed by the Minister on 28 June 2021.
CONSIDERATION
The Tribunal’s finding that is relevant to the applicant’s ground
The Tribunal’s finding at [23] is relevant to the consideration of this ground. In that paragraph the Tribunal said:
The applicant stated he is currently not working at all and that his parents are supporting him financially. The Tribunal considers that applicant’s economic circumstances in Australia relative to India are not presenting as a significant incentive for the applicant not to return to India.
The finding was made in the context of the Tribunal considering the factors in Ministerial Direction No 69. Paragraphs 9 and 10 of Ministerial Direction No 69 relate to the requirement that a decision-maker consider the applicant’s circumstances in their home country. Those paragraphs state (emphasis added):
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;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
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;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
Submissions made by the parties
The applicant submitted that the Tribunal was required to consider every claim made by an applicant, including integers of claims that clearly arise from the material, and that a failure to do so constitutes jurisdictional error.
The applicant submitted that a claim which clearly arose from the material was that the fact he had no means to support himself in Australia and was relying on parental assistance was a clear incentive for him to return to India. The applicant submitted that although the Tribunal considered that there was no disincentive for the applicant not to return to India by virtue of his economic circumstances, the Tribunal ought to have taken it a step further and considered whether there was a ‘pull’ factor for the applicant to return to India.
In responding to a submission made on behalf of the Minister to the effect that the finding in fact made by the Tribunal reflected the language used in paragraph 9(c) of Ministerial Direction No 69 and the Tribunal was not required to take any additional step, Counsel for the applicant submitted that the statutory task of the Tribunal is to apply the criteria in the Regulations. Counsel for the applicant submitted that Ministerial Direction No 69 is not a checklist and to narrowly apply it as such is to fall into error. In making this submission, Counsel for the applicant noted the distinction in the wording in paragraphs 9(b) and (c), with the former requiring consideration of whether the relevant circumstances ‘would serve as a significant incentive to return to their home country’ and the latter requiring consideration of whether the relevant circumstances ‘would present as a significant incentive for the applicant not to return to their home country’.
The Minister submitted that the applicant’s ground fails for several reasons, including:
(a)The contention that the Tribunal failed to take into account an integer of a claim conflates the requirements in Chapter 7 of the Migration Act with those in Chapter 5.
(b)The Tribunal’s double negative finding that the applicant’s economic circumstances were not a significant incentive not to return can be read as a finding that the applicant’s economic circumstances in Australia were an incentive to return to India and it can be readily inferred that the Tribunal considered and accepted that the applicant’s economic circumstances would make it more likely to return to India. The Tribunal’s finding should be read in the context of its decision as a whole and without an eye finely attuned to error.
(c)The Tribunal’s finding at [23] of its reasons that the applicant’s economic circumstances in Australia were not a significant incentive not to return were cast in precisely the language expressed in paragraph 9(c) of Ministerial Direction No 69, which required the Tribunal to have regard to the economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. The Tribunal had regard to that factor and was not required to take some additional steps not specified in the Direction when considering the applicant’s circumstances. The applicant seeks to import an additional step into the Direction.
In oral submissions, Counsel for the Minister agreed with the submission of Counsel for the applicant to the effect that the task of the Tribunal is to apply the criteria in the Regulations and that, in conducting that assessment, the Tribunal is to comply with Ministerial Direction No 69 without treating it as a checklist. Counsel for the Minister submitted that that is exactly what the Tribunal did in the present matter, and highlighted particular paragraphs of the Tribunal reasons that directly addressed some of the factors in Ministerial Direction No 69. Counsel for the Minister submitted that the Tribunal considered the evidence about the applicant’s financial circumstances and that was sufficient – it was not required to consider the evidence in a particular way.
Resolution
It can be seen from the summary of the parties’ submissions that there is a dispute in relation to whether the principle that a decision-maker is required to consider all claims raised by an applicant and their component integers, including claims that are not expressly articulated but which emerge clearly from the materials, applies in relation to reviews under Part 5 of the Migration Act. However, the parties did not make detailed submissions on this issue.
This principle commonly arises in the context of applications for protection visas and has been explained in cases such as NABE v Minister for Immigration and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 and AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89. The principle has been applied by the Courts in the context of some Part 5 decisions, including by me in Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 143 (Naidu), which was cited by the applicant in his submissions. In that case, I applied the principle in the context of arguments by an applicant in relation to reasons the Schedule 3 criteria should be waived, following a judgment of Judge Blake in Kumar v Minister for Immigration and Border Protection [2021] FCCA 1336 (Kumar). There does not appear to have been any argument advanced by the Minister in Naidu or Kumar that the principle does not apply in Part 5 cases.
Neither party, in their submissions to the Court in the present case, referred to any case in which the courts have considered detailed submissions of parties as to whether the principle applies in the context of Part 5, or the extent to which the answer may turn on the criteria being addressed by the Tribunal, and neither party referred to any cases or made any submissions as to whether the principle applies in the context of the assessment of the genuine temporary entrant criterion. Although not referred to by the parties, there is at least one Federal Court case in which the Federal Court held that the principle applies in the context of consideration of the genuine temporary entrant criterion and Ministerial Direction No 69. In Kaur v Minister for Home Affairs [2019] FCA 2026 (Kaur), Steward J said at [31] (emphasis added):
In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v. Minister for Home Affairs [2019] FCAFC 135; SZSSC v. Minister for Immigration and Border Protection (2014) 142 ALD 150 at 172-176 [75]-[81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v. Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v. Minister for Immigration and Border Protection (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ.
Based on Kaur, it seems to me that the better view is that the principle that the Tribunal is required to consider all claims raised by an applicant and their component integers, including claims which are not expressly articulated but which emerge clearly from the materials, does apply in the context of consideration of the genuine temporary entrant criterion.
However, it is not necessary to address this in detail in the context of the findings that I have made below. This is because the relevant ‘integer’ of a claim identified in the applicant’s submissions was not expressly articulated by the applicant and, for the reasons explained below, I do not consider that any such claim clearly emerged on the materials before the Tribunal.
The fact that the unarticulated claim asserted by the applicant does not directly relate to a factor in Ministerial Direction No 69 is not determinative of this ground. In this regard, it is appropriate to have regard to the statutory task of the Tribunal and the criteria that the Tribunal applied. Both parties in their oral submissions accepted that the task of the Tribunal was to apply the criteria in the Regulations, which included cl 500.212 in the present case, and that in considering whether the applicant met the criterion in cl 500.212(a), the Tribunal was required to have regard to the factors identified in Ministerial Direction No 69.
Clause 500.212 and Ministerial Direction No 69 make clear that the relevant considerations are not limited to those that are expressly set out in Ministerial Direction No 69. The Tribunal is required by cl 500.212(a) to have regard to, amongst other things, the applicant’s circumstances and ‘any other relevant matter’. Ministerial Direction No 69 expressly states that the factors listed in the Direction ‘are intended only to guide decision makers when considering the applicant’s circumstances as a whole’ (paragraph 1). Further, paragraph 2 of Ministerial Direction No 69 makes clear that the decision-maker is required to assess whether the genuine temporary entrant criterion is satisfied by considering the factors specified in the Direction and by ‘considering any other relevant information provided by the applicant (or information otherwise available to the decision maker)’.
Accordingly, the Tribunal may be required to consider a matter that is relevant to its assessment of whether an applicant intends genuinely to stay in Australia temporarily, even if it is not specifically referred to in Ministerial Direction No 69.
In the present case, the Tribunal was required to consider the applicant’s circumstances in assessing whether he met the genuine temporary entrant criterion. Those circumstances included his economic circumstances. The Tribunal summarised that the applicant gave evidence that he was not working and that his parents were supporting him financially. There is no transcript of the Tribunal hearing in evidence before the Court, so there is therefore no evidence of the precise words used by the applicant in providing this evidence to the Tribunal. In the absence of any submission or evidence to the contrary, it is appropriate to proceed on the assumption that the Tribunal’s summary of that evidence is accurate.
The Tribunal had regard to the applicant’s evidence and made a finding on the basis of that evidence. That finding of the Tribunal was expressed in a way that was consistent with the factor set out in paragraph 9(c) of Ministerial Direction No 69, namely, that the applicant’s economic circumstances did not present as an incentive for him not to return to his home country.
I then turn to the reasons why the Tribunal was not under any obligation, in the particular circumstances of the case, to consider the applicant’s economic circumstances in the way asserted by the applicant in his submissions to this Court, which extends beyond the factor in paragraph 9(c) of Ministerial Direction No 69.
The applicant’s case, while cast in terms of a failure to consider an integer of a claim, can be seen as an assertion that the Tribunal, having considered evidence of the applicant’s economic circumstances and made a finding on the basis of that evidence, should further have considered whether the evidence also gave rise to another finding that was not the subject of any submissions by the applicant and was not a factor that was expressly referred to in Ministerial Direction No 69.
The Tribunal in the present case gave the applicant a copy of Ministerial Direction No 69 and it can therefore be inferred that the applicant was on notice of the factors in the Direction and the way in which the Direction indicated it was to be used by the Tribunal. There is no suggestion that the applicant made any submission to the Tribunal that his economic circumstances should also be considered on the basis that they provided a positive incentive for him to return to India. There was therefore no express submission that the Tribunal might have considered.
The applicant’s evidence, in the manner in which it appears to have been presented, supports the Tribunal’s finding that the applicant’s economic circumstances do not present as an incentive for him not to return to India. However, it does not, on its own, give rise to any claim that the applicant’s economic circumstances provide a positive incentive for him to return to India. Contrary to the Minister’s submission, the double negative used by the Tribunal in articulating its finding does not equate to a positive finding. There is a subtle but material distinction between a finding that (a) the circumstances of an applicant are an incentive for the applicant to return to their home country; and (b) the circumstances of an applicant are not an incentive for the applicant not to return to their home country. The latter finding does not necessarily mean that the applicant’s circumstances present as an incentive to return and may be used where the Tribunal assesses the circumstances to have a neutral impact on an applicant’s incentive to remain in Australia or return to their home country.
The evidence before the Tribunal shows that the applicant was supported by his parents in Australia at a particular point in time. There is nothing in the materials before the Court to indicate that the applicant gave any evidence to the Tribunal relevant to matters such as whether or not the level of financial support the applicant received from his parents was sufficient to meet his financial needs, whether that support would continue indefinitely in Australia or whether equivalent financial support to that provided to the applicant in Australia would also be provided to him in India.
The Tribunal would not have been able to make a finding as to whether the applicant’s economic circumstances present a positive incentive for him to return to India without making assumptions that were not supported by the evidence before it. This weighs against a finding that any unarticulated claim or integer clearly emerged from the materials before the Tribunal.
Taking into account the way in which the applicant’s evidence appears to have been presented, and the absence of any further information which might suggest that the economic support he received from his parents while in Australia amounted to an incentive for him to return to India, I find that there was no expressly articulated claim, or unarticulated claim which clearly emerged on the material before the Tribunal, to the effect that the applicant’s economic circumstances provided a positive incentive for the applicant to return to India. There is therefore no error in the Tribunal failing to consider whether the applicant’s economic circumstances could give rise to an additional finding to the one it made that reflected the consideration required by paragraph 9(c) of Ministerial Direction No 69.
Materiality
Both parties made submissions addressing whether the alleged error was material. In the light of my finding that the Tribunal did not make the alleged error, it is not necessary to address the parties’ submissions on materiality.
COSTS
The applicant has not established that the Tribunal decision is vitiated by jurisdictional error and it follows that the application must be dismissed.
At the hearing, both Counsel confirmed that, if successful in the judicial review application, the party they respectively represented sought costs in the scale amount of $8,371.30. I am satisfied that the scale amount is appropriate in this matter and that, as the Minister is the successful party, the applicant should pay the Minister’s costs of the proceeding in the scale amount.
Additionally, irrespective of the outcome, the Minister sought an order that the applicant pay $1,000 to the Minister in costs thrown away. The application for costs thrown away arose in circumstances where:
(a)the application had been listed before me for hearing on 5 April 2024;
(b)the applicant, who was represented by a different legal practitioner at the time, failed to file any amended application and written submissions 28 days before the hearing, in accordance with an order that was extant at the time;
(c)the Minister filed written submissions on 22 March 2024, in compliance with an order that was extant at the time;
(d)on 29 March 2024 the applicant filed a Notice of Address for Service indicating that Carina Ford Immigration Lawyers were now representing the applicant in relation to this proceeding; and
(e)on 4 April 2024 I made orders by consent vacating the hearing on 5 April 2024 and for the filing of any amended application, affidavit and submissions by the applicant and any affidavit and submissions by the Minister, reserving the question of costs.
The applicant neither consents to nor opposes the Minister’s application for costs thrown away in the amount of $1,000.
I am satisfied that it is appropriate to require the applicant to pay the Minister’s costs thrown away in the amount of $1,000 in relation to the late amendment of the application, after the Minister had already prepared and filed written submissions. The Minister has incurred costs that would not otherwise have been incurred had the applicant filed the amended application and submissions 28 days before the hearing listed on 5 April 2024, as he was required to do.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 June 2024
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