Kaur v Minister for Immigration, Citizenship, and Multicultural Affairs
[2023] FedCFamC2G 601
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FedCFamC2G 601
File number(s): BRG 500 of 2021 Judgment of: JUDGE EGAN Date of judgment: 10 July 2023 Catchwords: MIGRATION LAW – Whether Tribunal conducted a proper review – whether Tribunal was illogical or irrational in the way in which it arrived at its decision – no jurisdictional error established – application dismissed. Legislation: Migration Regulations1994 (Cth) cl. 500.212 of Sch. 2 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Applicant A159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 473
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCA FC 73
MZZUG v Minister for Immigration [2015] FCA 1151
NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 4 July 2023 Date of hearing: 4 July 2023 Place: Brisbane Counsel for the Applicants: Mr M Steele KC Counsel for the First Respondent: Mr J Byrnes Solicitor for the Applicants: Denes Lawyers Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
BRG 500 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMANDEEP KAUR
First Applicant
MANPREET SINGH
Second Applicant
GURSHAAN SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
10 July 2023
THE COURT ORDERS THAT:
1.The Amended Application for Review filed on 23 March 2023 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 EGAN
The primary applicant (‘the applicant’) was a female citizen of the Republic of India. The secondary applicants were respectively the primary applicant’s husband and male child. The success of the visa applications made on behalf of the secondary applicants was dependent upon the success of the primary applicant’s application because they were her family member dependents.
The applicants arrived in Australia on visitor visas that were valid from May 2019 until May 2020. The applicant applied for a student visa on 29 October 2019 on the basis that she was proposing to study a Certificate IV course in Commercial Cookery and a Diploma of Hospitality Management. Before coming to Australia, the applicant had completed a Bachelor of Arts in India between 2004 and 2007, and a Bachelor of Education in India between 2008 and 2010. Prior to coming to Australia, the applicant worked as a domestic in Singapore between 2015 and 2016.
After her arrival in Australia, the applicant completed the following courses:
a. a Certificate IV in Commercial Cookery between October 2019 and March 2021 and
b. a Diploma of Hospitality Management between April 2021 and August 2021.
c. the applicant was studying an Advanced Diploma of Hospitality Management that was due to commence in November 2021 and conclude in March 2022.
The applicant has also carried out work in Australia, namely as a cook between October 2020 and June 2021, and as an assistant chef between July 2021 and in or about November 2021.
On 18 December 2019, a delegate of the Minister refused to grant the visa applications. The applicant sought review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’).
On 22 November 2021, the Tribunal handed down written reasons by which the decision of the delegate was affirmed.
Grounds of Review
At the hearing before the Court, the applicants relied upon an Amended Application for Review filed on 23 March 2023, the grounds of which were as follows:
1.…
2. To the extent that the second respondent made findings of concern about the applicant remaining in Australia for longer (or on an “ongoing basis”):
a. Those findings are based on findings at [25], [26] and [38] which:
i. are not a rational basis for the findings of “concern”;
ii. are irrational or unreasonable;
iii. are unsupported by evidence.
[Paragraphs 1-8 of application to review filed on 05/11/2021 not used]
3.The second respondent failed to discharge its duty to review the matter. This is supported by the following:
a.Mrs Kaur studied a Bachelor of Arts degree in India between 2004 to 2007 and then a Bachelor of Education degree, also in India, between 2008 and 2010.
b.There was no evidence before the second respondent that Mrs Kaur worked in occupations related to those studies.
c.As noted by the second respondent, in Australia, from October 2019 Mrs Kaur studied a Certificate IV course in Commercial Cookery, followed by a Diploma of Hospitality Management and her intention was to complete an Advanced Diploma of Hospitality Management to be completed by March 2022.
d.As noted by the second respondent, in Australia Mrs Kaur worked as a cook between October 2020 to June 2021 and then as an assistant chef.
e.Mrs Kaur gave evidence before the second respondent that she intended to return to India, work in a 5-star hotel first for 3 to 4 years, then start her own restaurant. She gave evidence that the first two courses in Australia taught her how to cook, and the last-mentioned course would teach her “the business side of things”.
f.The second respondent asked Mrs Kaur about the value of the courses she proposed to undertake in Australia and why she changed from arts/education to hospitality.
g.Paragraph 12(a) of Direction 69 directs decision makers to:
i. Determine if a visa applicant’s proposed course is consistent with their current level of education; and
ii. allow for reasonable changes to career or study pathways.
h.Following the hearing on 6 October 2021, the second respondent delivered its decision approximately 17 minutes after the hearing.
i.The second respondent failed to consider whether it was reasonable for Mrs Kaur to change from education completed many years earlier and which did not provide a career pathway in the years between 2010 to 2019 to courses in hospitality. In this regard:
i.The arts course had been completed some 14 years before the hearing and the education course was completed some 11 years before the hearing.
ii.There was no evidence that Mrs Kaur had worked in those fields and no evidence that the arts/education courses completed many years earlier would have any value for Mrs Kaur in terms of her employment prospects;
iii.The uncontested evidence indicated that Mrs Kaur worked in Australia in occupations closely related to her chosen Australian courses of study and she intended to work in similar occupations in the future.
In order for the applicant to qualify for the grant to her of a student visa, she had to satisfy the criteria as set out in clause 500.212 of Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’), which criteria relevantly provided as follows:
Clause 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, havng 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
of any other relevant matter.
At [11] – [12] of its reasons, the Tribunal appropriately set out the matters which it was required to consider when arriving at its decision as to whether or not the applicant intended genuinely to only stay in Australia temporarily. The Tribunal found as follows:
11. 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.
12. 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.
During the course of the hearing before the Tribunal, the Tribunal relevantly asked questions going to qualifying criteria as set out at [19] – [24] of its reasons as follows:
19. The Tribunal asked the applicant about the circumstances in her home country. In the information form the applicant submitted to the Tribunal, she was asked to respond to the following:
If there are similar courses available in the main applicant’s home country or region to the courses they are currently studying and/or propose to study in Australia, please give details of the main applicant’s reasons for not undertaking the courses in their home country or region.
20. The applicant answered, “No, going to school in 30s in India is a task in itself. It is not encouraged much or you can say look down on, hence studying here is more easier and I believe I can concentrate on my studies better. There are no courses of the same calibre which are recognised in India. Most of the courses are a Bachelor’s Degree and there is an entrance exam to enter those course [sic].”
21. The applicant told the Tribunal that her parents and her sister presently reside in India and she last saw them in August 2019. The applicant said she speaks to them almost every day via WhatsApp and FaceTime. The applicant says she has no brothers so she and her sister have to look after her parents.
22. Since the applicant arrived in Australia she has not returned to India. The applicant said she has no community ties in India and no property in her name in India, however there is a property in her parents’ name worth A$80,000. The applicant said she is not concerned about military service commitments or political and civil unrest in India.
23. The Tribunal asked the applicant about her potential circumstances in Australia. The applicant said her husband and four-year-old child presently reside with her in Australia. The applicant said her husband works as a trolley pusher.
24. The applicant said her husband’s brother and his wife live in Brisbane and that her husband’s brother is a citizen of Australia and he’s been in Australia since 2009. The applicant said they have two children and although they lived with the couple for about two months when they first arrived in Australia, otherwise they have only seen them once in March or April last year. This is partly because of the COVID-19 restrictions and the fact that the applicant and her husband and child live in Cairns. The applicant said that in Australia she attends the Sikh temple when she’s free and she has no property in her name in Australia. 860] Written reduction oral statement of reasons
At [27] – [30], [32] – [37] and [39] – [41] inclusive of its reasons, the Tribunal recorded the Applicant’s answers to questions put to her during the course of the hearing as follows:
27. The Tribunal asked the applicant when she plans to leave Australia if her current course finishes in March 2022 and the applicant said when she gets her Certificate.
28. The Tribunal asked the applicant why she had swapped the focus of her studies from arts and education in India now to cookery and hospitality management. The applicant said that when she was studying arts and education she was not sure about her career, and she would do anything in her life for her parents. The applicant said her parents found her a good groom, but she had goals she wants to achieve and she wants to do something different. The applicant said once the opportunity to explore Australia came up and she saw Australian cafés she saw there were more opportunities in Australia and if she goes back to Singapore or India she will get a good job.
29. The Tribunal asked the applicant why she is now studying lower level courses, being Certificates and Diplomas, when she already has Bachelor’s Degrees from India. The applicant said she met a girl and talked to her about the Certificate course. She then talked to a lawyer about this course and took the admission in that course.
30. The Tribunal asked the applicant why she decided to study in Australia if she arrived in Australia on a visitor visa. The applicant said that here, there are no restrictions; if she wants to study or work, she can. The applicant said she was studying in Australia to achieve her goals and she was undertaking the study in Australia to achieve something for her parents.
…
32. The Tribunal asked the applicant about the value of her current course to her future. The applicant told the Tribunal in the information form that her plan was to seek work in a five-star hotel in northern metropolitan India and then start her own Aussie star café business.
33. In the genuine temporary entrant statement the applicant submitted to the Department, the applicant indicated that she could work as a bar manager, café manager, chef patisserie, club manager, executive housekeeper, front office manager, kitchen manager, motel manager or restaurant manager with her qualifications. oral
34. The Tribunal asked the applicant what her current future plans are. The applicant said that she plans to study her Advanced Diploma in November and once she finishes this course she’s going back to try and get a new job in a five-star hotel and she plans to work for three or four years there before opening her own restaurant.
35. The Tribunal asked the applicant if she had applied for any jobs back in India and the applicant said not yet because she needed her Certificate and that she got her Certificate IV today, and in India you cannot apply for any jobs without a Degree and all the applications you need to show good qualifications.
36. The Tribunal asked the applicant if she has a business plan for her future business. The applicant said “Not yet” and that she wants to do the job first.
37. The Tribunal asked the applicant why she needs her current course, the Advanced Diploma, to complete her future plans if she already has a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management and has been working in the industry since October 2020. The applicant said that her previous courses taught her how to cook, whereas the Advanced Diploma will teach her how to manage the business side of things. The applicant said that when she wants to open her own restaurant she will have to know everything about how to run her own business and restaurant.
…
39. The Tribunal has taken into account the applicant’s immigration history insofar as the applicant arrived in Australia on a visitor visa that was valid until May 2020 and the applicant is now attempting to extend her stay in Australia to March 2022.
40. The applicant told the Tribunal that prior to coming to Australia she was earning the equivalent of approximately A$6,600 per year working in domestic help in Singapore, but that role also provided her with everything including her accommodation and food. The applicant said that she is presently earning approximately A$22,000 per year as an assistant chef in Australia.
41. The applicant said she expects to earn between A$12,000 and A$36,000 per year when she Tribunal’s earlier findings in relation to the applicant’s future plans the Tribunal places little weight on this evidence.
Relevant findings made by the Tribunal were at [25], [26], [31], [38] and [43] of its reasons and were as follows:
25. Based on all this evidence the Tribunal finds that the applicant’s family ties to India do not of themselves constitute a strong incentive for the applicant to return to India. In making this finding the Tribunal has placed significant weight on the fact that the applicant has been in Australia for over two years and has not returned and has managed to keep in touch with her family
in India via electronic means during this time.
26.Similarly, based on all of this evidence the Tribunal finds that the applicant’s family ties to Australia do constitute a strong incentive for the applicant to remain in Australia, and in making this finding the Tribunal has placed significant weight on the fact that the applicant is living in Australia with her husband and child.
…
31. Based on all of this evidence the Tribunal is concerned that the applicant may be attempting to use the student visa system to stay in Australia for longer. In making this finding the Tribunal has placed significant weight on the fact that the applicant has swapped the focus of her studies significantly since arriving in Australia. She arrived in Australia on a visitor visa and then completely changed her plans to study in Australia. She is completing lower level courses to the Bachelor’s courses she’s completed in India, and she has now been in Australia for over two years.
38. Based on all of this evidence the Tribunal finds the applicant has provided only vague details about her future plans and has failed to explain in any meaningful detail why she requires her current course in order to complete her future plans. In making this finding the Tribunal has placed significant weight on the fact that the applicant does not have a written business plan for her future business, and she already has a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, and the Advanced Diploma of Hospitality Management is an extra course over and above the courses the applicant was planning to complete when she first applied for the student visa.
43. On this basis, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl. 500.212(a).
Consideration of Grounds of Review
Ground 2 of the Amended Application for Review was a claim that the findings of the Tribunal at [25], [26] and [38] of its reasons were unsupported by evidence, irrational and unreasonable. As to that claim, in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135], Crennan and Bell JJ held as follows:
130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
It is a high bar for someone to establish legal unreasonableness or irrationality on the part of a decision maker. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] – [61], the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality as follows:
60. In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52. As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.…
54. … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
…
61. For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).
It was submitted on behalf of the applicant that there was no reasonable or rational basis for the conclusion at [43] of the reasons of the Tribunal that the Tribunal was not satisfied that the applicant intended genuinely to only remain in Australia temporarily. It was further submitted that the Tribunal did not make relevant findings able to sustain the basis for the making of its decision. Reliance was placed by the applicant upon the decision of the High Court in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [20] where it was said:
20. Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an "intelligible justification" but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.
It was further submitted on behalf of the applicant that the Court ought have regard to what was held by Gageler J at [105] of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, namely:
105. "It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason"[192]. Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."
There is no merit to such claims. The submissions made on behalf of the applicant were so made with an eye too keenly attuned to error. [1] No extreme illogicality or irrationality has been demonstrated.
[1] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR
As submitted on behalf of the first respondent, a finding of fact is not necessary to support a conclusion of non-satisfaction. [2] In Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] Black CJ, Sundberg and Bennett JJ held as follows:
17. We are unable to agree with his Honour’s statement that “in the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non‑satisfaction”: see [9]. As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non‑satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant’s claims were at “such a general and vague level that the Tribunal cannot establish the relevant facts”, and therefore had made no findings either accepting or rejecting the claims. The Tribunal’s approach was upheld by a Full Court at [15]:
“It can be seen from the form of [s 65(1)] that it does not require the decision‑maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.”
See also NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 at [33] and Applicant A159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 473.
[2] MZZUG v Minister for Immigration [2015] FCA 1151 per Murphy J at [57]
Further, the Court agrees with the first respondent’s submissions that it was open for the Tribunal to find that the lack of any community ties in India; the lack of any property directly owned by her in India; the existence in Australia of her immediate family and the family of her brother in-law, reflected incentives on the part of the applicant to remain in Australia. The Tribunal was entitled to arrive at a view as to what the applicant’s intentions actually were by reference to all aspects of the evidence before it. The lack of a contemplated business plan in relation to the applicant’s return to India was but one example of how the Tribunal was entitled to form an impression about the applicant’s intentions based upon her not having such a plan. Likewise, the Tribunal was entitled to express its concern that the applicant might be attempting to use the student visa system to stay longer in Australia. The fact of the applicant having applied for a student visa which has allowed her to stay in Australia well past May 2020 when her initial visitor visa would have expired was also a matter which the Tribunal was entitled to have regard to when assessing what the applicant’s intentions were, irrespective of whether the Tribunal did or did not make a specific finding about it. The Tribunal was not obliged to set out each and every matter considered by it before it arrived at its decision. What the Tribunal did was carefully consider the evidence before it and then arrive at a decision which had an intelligible basis. The decision of the Tribunal was not one which another reasonable decision maker could not have arrived at.
As to Ground 3, such ground was a claim that the Tribunal had failed to undertake a proper review. There is no merit to such claim. In WAEE at [46] – [47], it was held as follows:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
At [25] – [26] of its reasons, the Tribunal made findings based upon the lack of family ties in India which might motivate the applicant to return there. At [31] of its reasons, the Tribunal compared the applicant’s completion of lower-level courses in Australia to courses already completed by the applicant in India. At [38] of its reasons, the Tribunal found that the applicant had only provided vague details about her future plans, further finding that the applicant had failed to explain in any meaningful detail why she was required to complete her then current course in order to complete her future plans. At [43] of its reasons, the Tribunal encapsulated all of its earlier findings so as to arrive at the decision not to grant her review application. There was ample demonstration by the Tribunal that it had properly considered and intellectually engaged in the question before it, namely whether the applicant satisfied the criteria as set out in cl. 500.212 (a) of Schedule 2 to the Regulations or not.
Nothing in the transcript detracts from the validity of findings made by the Tribunal. Indeed, relevant parts of the transcript are supportive of the proposition, as found by the Tribunal, that the applicant’s plans were vague and lacked detail. [3]
[3] See Transcript p. 11.5 – 12.35 being Annexure A to the affidavit of Mr Denes filed on 23 March 2023.
The fact that the Tribunal delivered oral reasons shortly after the conclusion of the hearing of evidence and the making of submissions before the Tribunal was of no moment in the absence of some demonstrated error. Timeliness in the handing down of reasons, where appropriate, is to be encouraged. In any event, as submitted on behalf of the first respondent, it has not been submitted that the written reasons of the Tribunal differed in any substantial respect from the oral reasons as delivered.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Grounds of review in the Amended Application for Review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 10 July 2023
593 at [46] – [47] per French , Sackville and Healy JJ
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