Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 321
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 321
File number: MLG 2485 of 2017 Judgment of: JUDGE RILEY Date of judgment: 28 April 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – student visa – whether the Tribunal considered the matters required to be considered under Ministerial Direction No 53 – whether the Tribunal asked irrelevant questions – whether the Tribunal’s decision was made without evidence – whether the Tribunal’s decision was illogical or irrational. Legislation: Migration Act 1958 s.499
Migration Regulations 1994 Schedule 2 cl 572.223
Ministerial Direction No. 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications
Cases cited: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; (2005) 228 ALR 28; [2005] FCA 1707
Craig v South Australia (1995) 184 CLR 163; (1995) 39 ALD 193; (1995) 131 ALR 595; (1995) 69 ALJR 873; (1995) 82 A Crim R 359; [1995] HCA 558
Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
Waterford v Commonwealth (1987) 163 CLR 54; (1987) 12 ALD 741; (1987) 71 ALR 673; (1987) 61 ALJR 350; [1987] HCA 25
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 30 January 2023 Place: Melbourne Advocate for the Applicant: Ankurpreet Singh Solicitor for the Applicant: Trans Advisory International Lawyers Counsel for the First Respondent: Kylie McInnes Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: No appearance Solicitor for the Second Respondent: Sparke Helmore Lawyers ORDERS
MLG 2485 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVINDER KAUR
First ApplicantRAJDEEP SINGH BRAR
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
judge riley
DATE OF ORDER:
28 April 2023
THE COURT ORDERS THAT:
1.The application filed on 17 November 2017 and amended on 27 September 2022 be dismissed.
2.The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s reasons for judgment may be subject to review 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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visas.
The first applicant is the primary visa applicant. She is an Indian citizen who came to Australia on a student visa on 30 May 2009. She was subsequently granted another student visa and then another. On 12 March 2015, the first applicant applied for a fourth student visa. That application was refused by a delegate of the Minister on 28 April 2015. That refusal was set aside on review by the Tribunal and the matter remitted to the delegate on 14 January 2016. On 14 June 2016, the delegate again refused the application.
The second refusal was reviewed by the Tribunal. The Tribunal affirmed the delegate’s second refusal in an oral decision made on 14 November 2017. The applicant applied for review by this court on 17 November 2017. That is the application that is presently before this court.
When the first applicant arrived in Australia in 2009, she was married to Harjeet Singh. However, she said that they separated due to family violence. By the time that she applied for the fourth student visa on 12 March 2015, the first applicant was married to Rajdeep Singh Brar. He is the second applicant. He makes no claims of his own, but is a secondary visa applicant.
BACKGROUND
The applicants noted in the background set out in their written submissions filed on 27 September 2022 that:
2.Since her arrival in Australia, the first applicant has successfully completed the following courses:
•ELICOS
•Certificate III in Hospitality (Commercial Cookery)
•Certificate IV in Hospitality (Commercial Cookery)
•Certificate IV in Frontline Management
•Advanced Diploma of Leadership and Management
3.At the time of lodging visa application for subclass 572, the applicant was enrolled for a Diploma and Advanced Diploma in Management,
4.As per the decision record provided by the delegate (CB-87-92), the first and second applicants failed to satisfy clause 572.223 of the Migration Regulations1994 (Cth) for the grant of visa or Ministerial Direction No - Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications.
(footnote omitted)
In his written submissions filed on 26 November 2021, the Minister provided the following background to this matter:
3.The First Applicant is a citizen of India who arrived in Australia on 30 May 2009 on a Student (Temporary) (Class TU) (Subclass 572) visa (CB 89). She was granted two further visas of the same class and, on 12 March 2015, applied for a fourth such visa (visa application) (CB 1). The Second Applicant, the First Applicant’s husband, was a secondary applicant for the visa.
4.At all material times, a criterion for the grant of the visa, referred to as “the genuine temporary entrant criterion”, was that:
The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that 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) …
(iv) any other relevant matter; …
5.Ministerial Direction No 53, given under s 499 of the Act, sets out the factors that must be take into account by delegates of the Minister (and the Tribunal) when assessing the genuine temporary entrant criterion for certain student visa applications, including the Applicants’ visa application. The factors relevantly include:
(a)“the value of the course to the applicant’s future” ([7]), including “[w]hether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country” ([12.a]);
(b)“[w]hether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there” ([9.a]);
(c)“[t]he extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country” ([9.b]);
(d)“[t]he applicant’s ties with Australia which would present as a strong incentive to remain in Australia” ([11.a]);
(e)“[w]hether the Student visa is being used to maintain ongoing residence” ([11.c]);
(f)“[t]he applicant’s knowledge of … their intended course of study … and the level of research the applicant has undertaken into their proposed course of study” ([11.e]);
(g)“[p]revious visa applications for Australia” ([14.a]); and
(h)“[p]revious travels to Australia or other countries, including … the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification” ([14.b.iii]).
6.On 13 March 2015, the Minister’s Department requested information from the Applicants to assist in determining their visa application (CB 12). In doing so, the Department relevantly noted in respect of the genuine temporary entrant criterion for the First Applicant (CB 18):
Records indicate your current TU 572 visa was granted to you on 13/12/2012 on the basis of studying an Advanced Diploma of Hospitality. Records indicate you did not manage to complete this course and have instead enrolled in Management courses at the Vocational Education Sector. You were previously enrolled in a Diploma of Management, which you decided not to continue and instead commence a Certificate IV in Frontline Management course followed by further Management related qualifications. It seems you are not progressing academically and are using the Student visa program to prolong your stay onshore.
7.On 9 April 2015, the First Applicant provided a statement in response (CB 27) in which she relevantly said that:
(a)the reason she did not complete the Advanced Diploma of Hospitality was because her course provider was unable to deliver the course (CB 28);
(b)she wished to complete her management studies and therefore enrolled in a Certificate IV in Frontline Management (CB 28);
(c)she and the Second Applicant have strong family ties in India as their parents, siblings and relatives live there (CB 29);
(d)the Second Applicant is planning to open an automotive business in India which she intends to join after completion of her management studies in Australia (CB 29); and
(e)the Second Applicant has completed various Australian qualifications in automotive technology and management in the period 2010-2014 and is living with her in Australia whilst she completes her studies (CB 29).
8.On 25 January 2016, the Department requested further information from the First Applicant in relation to the genuine temporary entrant criterion, observing that (CB 61):
You have been onshore since 30/05/2009 and have not departed Australia since arrival. While onshore you have undertaken a variety of low level courses in Hospitality and have only achieved a moderate level of completion. Your current enrolments appear to be of little value to your future.
9.On 17 February 2016, the First Applicant provided a second statement (CB 63) in which, in addition to repeating matters advanced in her first statement, she said that:
(a)she had “certain compelling family reasons, which were beyond my control due to which I had to maintain my studies therefore I have not departed Australia and preferred to stay in Australia”, being separation from her first husband and her family’s desire for her return to India to marry again, which she considered would have hampered her future plans (CB 63-64);
(b)she has now completed a Certificate IV in Frontline Management (CB 64); and
(c)she “planned to join Masters of Business Administration in India/Australia before I join my family business of my husband in India” (CB 64).
10.On 14 June 2016, a delegate of the Minister refused the Applicants’ visa application on the basis that the First Applicant did not meet the genuine temporary entrant criterion (CB 83).
(footnotes omitted)
THE TRIBUNAL’S DECISION
The Tribunal’s reasons for decision were given orally and subsequently reduced to writing. The reasons, omitting the introduction, were as follows:
STATEMENT OF DECISION AND REASONS
3.To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the regulations.
4.You applied for a student visa on 12 March 2015 - Your application was refused on 14 June 2016 because having considered your circumstances, the delegate was not satisfied you met the Genuine Temporary Entrant criteria and therefore did not satisfy clause 572.223.
5.You appealed the decision to be reviewed by this tribunal and with your application you included a copy of the primary decision.
6.To satisfy 572.223 an applicant must be both a Genuine Student and a Genuine Temporary Entrant.
7.To be a genuine student you must be engaged in meaningful study towards an identified academic outcome.
8.To be a genuine temporary entrant your circumstances must support a genuine intention to remain in Australia temporarily
9.As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. They were detailed in the primary decision and they include:
•Your circumstances
•The value of your course/s to your future
•Your Immigration history
•Your incentive to stay in Australia or return home
•If you are using the student visa programme to maintain ongoing residence in Australia
•Any other relevant matters
10.This is not meant as a checklist but as a guide to weigh up an applicant’s circumstances as a whole, in reaching a finding about whether an applicant satisfies the genuine temporary entrant criteria.
11.The role of the Tribunal is to take a fresh look at your application, consider your circumstances and the issues in Direction No.53 and be satisfied you are a genuine student who intends to stay in Australia temporarily.
12.You told the Tribunal you had read and understood the primary decision which we discussed today in some detail.
13.The primary decision and its detailed references to the issues of Direction No 53 put your notice of the issues in your case.
14.With the hearing invitation we advised we would assess whether you met the genuine temporary entrant requirements again putting you on notice of the issues we would consider and asked you to provide a statement addressing the issues in Direction No. 53.
15.You did not respond to the hearing invitation or provide the statement requested however at today’s hearing you provided a copy of a statement that you’d made back in March 2016 and answered a number of questions that went to those issues.
16.You provided evidence you have recently completed an Advanced Diploma of Leadership and Management which is a course that replaced the Advanced Diploma in Management and provided evidence you are now enrolled in the Diploma of Leadership and Management, previously the Diploma of Management. The Tribunal notes that your husband has completed both those courses and you say they will provide skills you can use to help him in the business. The Tribunal finds it bizarre that you would study courses that your husband has already completed.
17.With the hearing invitation we also asked you to provide evidence of your past studies at least seven days before today’s hearing – you failed to do so however you have today provided the Tribunal with evidence of having completed a 12-month Certificate III in Commercial Cookery, a 6-month Certificate IV in Commercial Cookery, a 6-month Certificate IV in Frontline Management and today you provided evidence of having completed a 15-month Advanced Diploma of Leadership and Management.
18.This means that in 8½ years in Australia on a student visa you have managed to successfully complete less than 3½ years of study. The Tribunal believes this is not the progress of a genuine student.
19.When asked about this you say you have been stressed and there were study gaps and colleges that could not provide courses you wanted and whatever. None of those excuses or explanations satisfy the Tribunal that completing 3½ years of study in 8½ years is the progress of a genuine student
20.You told the Tribunal you came to Australia in 2009 having already completed a Bachelor of Arts. When I asked what you came here for your response was vague at best but it seems you came here to study hospitality. Study that would normally take no more than 3 to 4 years.
21.You came to Australia as the holder of a 572 student visa and have subsequently been granted 2 further 572 student visas. This application is for a 4th Student visa and includes your husband as a dependent secondary applicant.
22.You say your husband plans to open a sizeable automotive business in the Punjab and you will join him in the business after you complete your studies.
23.You provided evidence your husband has completed
•Certificate III in Automotive Mechanical Technology
•Diploma of Business
•Diploma and Advanced Diploma of Management
24.As I said to your husband I find it bizarre that someone would plan to go back to India 10 years after having done a one-year course and open a mechanic business with no experience and having done training over 10 years ago.
25.You have been here for considerably longer than it would take to complete the studies you came here for - but instead of completing those studies you have enrolled in short, relatively inexpensive courses in management that your husband has already completed. As I said this raises the question as to the benefit of you both studying the same courses.
26.You provided a statement that said you plan to do a Master of Business Administration before joining your husband’s business.
27.Early in today’s hearing you said you wanted to do an MBA. When I asked you about that you said it was a Master of Arts degree. You had an idea of what the course was and therefore the Tribunal does not believe that it is a matter that you have researched or given any serious thought.
28.The primary decision identified you had a 5 month study gap between November 2013 and April 2014, and a 7 month gap between July 2014 and February 2015.
29.You claim the 2nd gap was due to Brighton Institute of Technology not being able to provide the course.
30.The delegate also noted at the date of the primary decision you had not been studying for more than 3 months.
31.I am not satisfied you have provided a reasonable explanation for your study gaps and find they indicate a lack of interest in academic progress and when considered alongside the fact you have completed courses that have run for only 3½ years in 8½ years of study it is further evidence you are not a genuine student.
32.When asked why you do not study at home, you say Australian qualifications are considered more valuable. As the Tribunal said to you, if it is your intention to open your own business, the source of your qualifications is irrelevant.
33.While I acknowledge you have family back home, which may provide some incentive to return, you and your husband appear settled in Australia. You say you have been working as a pastoral care worker in aged care for the past couple of years and your husband has been a truck driver for at least three years. So while you say it is your intention to return home, having been here for over 8½ years you now seek to remain for a further year and a half. Your words and your actions seem to be different. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history
34.Having considered your circumstances as a whole, including the issues in Direction No 53, I am not satisfied you are a genuine student who intends to stay temporarily in Australia. Therefore I find you do not meet clause 572.223(1)(a).
35.It is therefore the decision of this tribunal to affirm the decision under review.
DECISION
36. The Tribunal affirms the decisions under review.
MATERIAL RELIED UPON
At the hearing before this court, the applicants relied upon:
(a)their initiating application filed on 17 November 2017 and amended on 27 September 2022 (“the application”);
(b)the affidavit affirmed by Davinder Kaur on 17 November 2017;
(c)the court book filed on 8 August 2018;
(d)their written submissions filed on 27 September 2022, except for the second last paragraph under the heading ‘Ground 2 – Asking Irrelevant Questions’ on page 7;
(e)the affidavit affirmed by Ankurpreet Singh on 16 January 2023; and
(f)the joint consolidated list of authorities filed on 27 January 2023.
The Minister relied upon:
(a)his response filed on 22 December 2017;
(b)the court book filed on 8 August 2018;
(c)his written submissions filed on 26 November 2021;
(d)the affidavit affirmed by Samuel Cummings on 26 November 2021;
(e)the list of authorities filed on 8 December 2021;
(f)the subsequent list of authorities filed on 29 August 2022;
(g)his written submissions filed on 12 October 2022; and
(h)the joint consolidated list of authorities filed on 27 January 2023.
GROUND 1
The first ground of review in the application is:
Failure to consider mandatory factors.
Particulars
(a)The AAT has committed jurisdictional error by failing to consider mandatory criteria specified under the Ministerial Direction No 53 and deciding the matter by excluding the information that favoured the applicant.
(b)The learned tribunal member fell into jurisdictional error when he failed to consider a number of mandatory considerations as specified in the Ministerial Direction No 53. The tribunal completely ignored mandatory criteria contained under paragraph 9(b)-(e) concerning the applicant’s circumstances in their home country and paragraph 16 which relates to other relevant information provided by the applicant, in this case, the circumstances which explained the applicant’s study gap and claims of family violence.
(c)The tribunal hearing only lasted 53 minutes which did not allow the tribunal member to intellectually evaluate all the mandatory considerations. A failure to evaluate all the mandatory factors contained in the ministerial direction amounts to a jurisdictional error.
Subclause 572.223(1) of Schedule 2 of the Migration Regulations 1994 (“the Regulations”) at all material times imposed the genuine temporary entrant criterion for the grant of a student visa. It relevantly provided that:
The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that 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) …
(iv) any other relevant matter …
Section 499 of the Migration Act 1958 (“the Act”) as at 14 November 2017 relevantly provided that:
499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
…
The Minister issued Direction No 53 under s.499 of the Act. It concerns the assessment of a criterion for the grant of a student visa, namely, the criterion that the applicant be a genuine temporary entrant.
Part 2 of Direction No 53 states:
ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION
…
2.Decision makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by:
1.considering the applicant against all factors specified in this Direction; and
2.taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).
(emphasis added)
The Full Court of the Federal Court of Australia considered the obligations of a decision maker under Direction No 53 in Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16. In that case, Derrington and Thawley JJ, with whom Logan J agreed, said:
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); Carrascalaov Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]; Khadgi at [57].
85.Those factors in Direction 53 considered to be sufficiently material to the decision must be brought to account in the decision-making process: Jan at [27]. Some factors may weigh in favour of the visa applicant, some may weigh against, some may be neutral, some may be of marginal significance and some may be irrelevant in the particular circumstances. The weight to be given to the various factors mentioned in Direction 53 is a matter for the decision-maker: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Khadgi at [58].
86.It is not the number of factors for and against a decision which is necessarily important, although it might be that this is considered by the decision-maker to be relevant in the particular circumstances. If a matter is not considered to be relevant to an applicant’s circumstances, or to be sufficiently material to the application, then it does not need to be given weight. In such a situation, the decision maker has had regard to the factor in determining, after genuine consideration, that the factor was not sufficiently relevant or material.
87. As is addressed further below, the decision-maker does not have an obligation under s 368 of the Act to refer to an immaterial matter in the reasons for decision. On the other hand, it is desirable to state that consideration has been given to the factors which the relevant statute requires be considered. As the Full Court said in Salahuddin at [22]:
… Where the context in which a decision is to be made requires that consideration be given having regard to specified matters, it forever remains the preferred course for any administrator to expressly refer to such matters. To do so largely removes any room for argument and provides assurance to the parties – especially the frequently unrepresented claimant – that a case has been properly considered. A failure to do so exposes such a decision-making process to a perhaps well-justified perception on the part of a claimant that his decision has not been made in accordance with law. Any such failure also fails to perhaps explain to a reviewing court as fully as would otherwise have been desirable the process of reasoning applied to the facts. The importance to a claimant, in particular, that his claims have been considered in accordance with law, cannot be under-stated …
…
102.Factors 9(d) and (e), 12(c) and 14(a)(ii), (b)(i), (ii) or (iv): No submission was made by the appellant to the Tribunal about military service or civil unrest in India – cf: paragraphs 9(d) and (e) of Direction 53. There was no evidence to suggest these factors were relevant or significant to the appellant’s particular circumstances.
103. There was no evidence before the Tribunal that enabled it to perform the comparison contemplated by clause 12(c). The Tribunal was not invited to. There was no evidence that engaged clauses 14(a)(ii), (b)(i), (ii) or (iv). It was not suggested that they were engaged.
104.The Tribunal had provided Direction 53 to the appellant in advance of the hearing. At the hearing, the Tribunal gave the appellant an overview of the considerations in Direction 53, noting that he had been provided a complete copy of it: T[12]. The Tribunal referred to Direction 53 in its reasons, recording that the direction “requires the Tribunal to have regard to a number of specific factors” in relation to the four matters set out in cl 572.223(1)(a): T[10].
105.It is plain from the foregoing that the Tribunal understood it had to comply with Direction 53 and consider the specific factors mentioned in it. Such statements can be taken into account in determining what the delegate in fact did, albeit the reliability of such statements is to be assessed according to all of the circumstances: Carrascalao at [131]; Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [70]; Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [38].
106.The Tribunal, in its reasons, did not laboriously set out each of the factors and deal with them seriatim – cf: Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 at [20]. Indeed, it did not refer to any specific factor by reference to its paragraph number. Rather, it assessed the appellant’s circumstances as a whole, consistently with what paragraph 1 of Direction 53 required. It is to be inferred from the statement of reasons that it did so after having considered which factors were material to the appellant’s particular circumstances, and which were not.
107.The appropriate inference to draw is that the Tribunal, having considered the whole of Direction 53, did not regard paragraphs 9(d) and (e), 12(c) and 14(a)(ii), (b)(i), (ii) or (iv) to be of sufficient importance or materiality to its decision on review to warrant mention in its written statement of reasons.
108. The primary judge was correct not to draw the inference that those or any paragraphs of Direction 53 were overlooked. There was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no submission had been made, and which were not the subject of evidence, less still to make express findings about those factors.
a. weight
In their oral submissions in relation to Ground 1, the applicants said that the Tribunal did not give adequate weight to the applicants’ strong family and employment ties to India, which provided a significant incentive to them returning there upon the completion of the first applicant’s education. The applicants also said in their oral submissions that the Tribunal did not place significant weight on the first applicant’s reasons for wishing to study in Australia.
The applicants’ arguments about weight cannot succeed: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40 at 41 (Mason J). This is a judicial review application. The court cannot overturn a Tribunal decision on the grounds of weight, unless it becomes a question of unreasonableness. The court raised this possibility with the applicants at the hearing, but they did not pursue it.
b. explanation for study gaps
In their oral submissions, the applicants also noted paragraph 16 of Direction No 53, which states as follows:
Decision makers must also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
In relation to this factor, the applicants argued that, at the Tribunal hearing, the first applicant tried to explain her study gaps to the Tribunal member but he did not allow her to do so. The applicants argued that this meant that the Tribunal failed to consider a mandatory consideration, being any other relevant information provided by the applicant or otherwise available to the decision-maker.
The transcript of the Tribunal hearing shows at page 11 the following:
MEMBER:So that is one year, six months, six months - three and a half years study and you've been here for eight and a half years.
MS KAUR:Yes.
MEMBER:So at eight and a half years you've completed three and a half years of study?
MS KAUR:Yes, because I am - - -
INTERPRETER: I have explained the reason for the gaps.
MEMBER:No, I'm not interested in gaps, Ms Kaur, what I'm saying to you is you've been here for eight and half years and you've shown evidence that you've successfully completed studies of courses that have taken three and a half years. That's not the progress of a genuine student. Do you understand what I’ve said?
MS KAUR:Yes, yes.
In my view, the Tribunal indicated that it was not interested in hearing about the applicant’s study gaps at that particular moment, because at that point it was concentrating on putting to the applicant that she had only successfully completed courses that took 3.5 years in the 8.5 years that she had spent in Australia.
The Tribunal had previously touched on study gaps with the first applicant, as shown at pages 3 and 4 of the transcript of the Tribunal hearing. Later, at page 21 of the transcript of the Tribunal hearing, the first applicant said she was very stressed because she had been divorced and divorce is taboo for Indian women.
Otherwise, the first applicant did not give an explanation of her study gaps during the Tribunal hearing. However, she claimed that she had given an explanation to the delegate in a letter dated 17 February 2016. That explanation was as follows:
During my stay in Australia I had certain compelling family reasons, which were beyond my control due to which I had to maintain my studies therefore I have not departed Australia and preferred to stay in Australia. I was married to Harjeet Singh when I first arrived to Australia in 2009 but due to domestic violence I got separated from my previous husband. Being an Indian Girl it caused me stress to me about my future and career. My family was suggesting me to return India to marry again after divorce with Harjeet Singh. But it would have hampered my future plans and changed my life altogether. Therefore I decided not to visit India until I complete my Australian studies.
The Minister disputed that those comments were an explanation for the first applicant’s study gaps, and submitted that they were an explanation for the first applicant not returning to India at all during her time in Australia. I accept that submission. The first applicant’s statement was clearly directed to the question of why she had not ever returned to India after coming to Australia.
In any event, the Tribunal had that letter dated 17 February 2016 as it had the delegate’s file. Indeed, it appears that the first applicant gave the Tribunal another copy of that statement, because, at paragraph 15 of its reasons for decision, the Tribunal said that the first applicant had given it a copy of a statement she had made in March 2016. That date appears to be a typographical error.
Ultimately, the Tribunal noted at paragraph 19 of its reasons for decision that the explanation given by the applicant for her study gaps was that she was stressed and colleges could not provide the courses that she wanted. The Tribunal also noted at paragraph 29 of its reasons for decision that the study gap between July 2014 and February 2015 was due to Brighton Institute of Technology not being able to provide the course.
These were the explanations that the first applicant gave. The Tribunal correctly summarised the first applicant’s explanations of her study gaps in its reasons for decision. There was therefore no failure to consider the first applicant’s explanation for her study gaps.
It should also be noted that, while the Tribunal said at one point during the Tribunal hearing that it was not interested in study gaps, the Tribunal also offered the first applicant the opportunity to say anything else she wished at the conclusion of the hearing, as shown on page 21 and again on page 22 of the transcript of the Tribunal hearing. At page 21, the first applicant said that she was very stressed as a divorced Indian woman. At page 22, she said she had nothing to add. By this means, the Tribunal gave the first applicant the opportunity to give a detailed explanation of her study gaps. However, the applicant chose not to avail herself of that opportunity. The Tribunal was under no obligation to ask the first applicant detailed questions to elicit an explanation.
Moreover, the Tribunal, prior to the Tribunal hearing, sent the applicants a letter dated 11 October 2017 which asked them to provide, within seven days, among other things, any explanation about study gaps and evidence in support of that explanation. The applicants did not respond to that letter. Again, the applicants were given an opportunity to provide a detailed explanation of the first applicant’s study gaps but chose not to avail themselves of that opportunity.
c. the applicant’s circumstances
In their written submissions, the applicants noted paragraph 6 of Direction No 53, which stated:
Decision makers must have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
(applicants’ emphasis)
The applicants said in their written submissions on this point that:
At the 23rd and 36th minutes of the tribunal hearing [T12.5-10 and T19.10-20], the tribunal member asked the second and first applicants respectively about their relevant jobs in Australia and how many hours they worked per week. The main applicant worked as an aged care worker and the second applicant worked as a truck driver. We submit that both applicants worked odd jobs in Australia which were below their educational qualifications and had limited work rights in Australia, which provided no incentive for the applicants to remain in Australia.
In her GTE statements and during the merits review hearing and in her personal statements lodged in support of the GTE criterion, the applicant informed the decision makers that her husband intends on opening a sizeable automobile business in India. The applicants informed the tribunal member, that their families were financially capable of supporting them in opening their business. (CB – 29 and 64)
The tribunal member failed to consider that the applicants had strong family and employment ties in India which provided a significant incentive to the applicants to return to India upon completion of her education and work for their own business or gain employment as a manager in India.
The submission before this court, that both applicants worked odd jobs in Australia which were below their educational qualifications and had limited work rights in Australia, which provided no incentive for the applicants to remain in Australia, was not made to the Tribunal and therefore did not need to be considered by the Tribunal.
It is also not accurate to say that the applicants worked “odd jobs” in Australia. Working in “odd jobs” means working in a series of unrelated or unspecialised jobs. In fact, the first applicant told the Tribunal that she had worked at an aged care facility in a particular suburb for nearly two years. She said the second applicant had been a truck driver for three years.
In any event, the Tribunal noted in paragraph 33 of its reasons for decision that the first applicant had worked in aged care for two years and the second applicant had worked as truck driver for three years. The Tribunal did not assess this work history as an incentive to return to India. However, it was not obliged to take that view of the evidence. The point for present purposes is that the Tribunal did in fact consider the applicants’ work history.
The Tribunal also specifically noted in paragraph 22 of its reasons for decision the claim that the second applicant planned to open a sizeable automotive business in Punjab. The Tribunal considered this evidence, and thought it “bizarre” that the second applicant would attempt to open an automotive business in India after doing a one year course 10 years previously and having no experience. Clearly, the Tribunal did not consider that the prospective automotive business in India was an incentive to return there. The point for present purposes is that the Tribunal did in fact consider the applicants’ alleged plans to open an automotive business in India.
The applicants’ alleged claim at CB29 and CB64 that their families were capable of supporting them financially in the business was not made at those pages. The first applicant did say that her father was supporting her in her education, which is a different thing to supporting her in a prospective business. However, in his evidence to the Tribunal, the second applicant said that his family could lend him some money to help him start the business. Nevertheless, it is clear that the Tribunal considered that the idea of the second applicant starting an automotive business in Punjab was fanciful, given he had no experience in the area and he had only done a one year course in automotive mechanical technology over 10 years previously. That finding subsumed any need to consider whether the second applicant’s family could assist financially with the proposed business.
At paragraph 33 of its reasons for decision, the Tribunal acknowledged that the applicants had families in India and said this “may provide some incentive to return”. However, the Tribunal considered that incentive was outweighed by other matters. The point for present purposes is that the Tribunal did in fact consider the applicants’ family ties.
d. the applicants’ circumstances in their home country
The applicant’s noted in their written submissions that paragraph 9 of Direction No 53 provided that:
9In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
(a)Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives as 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 they 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. This 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.
(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 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.
(applicants’ emphasis)
In respect of paragraph 9(a) of Direction No 53, the applicants went on to say:
During the hearing, at the 34th minute the tribunal member asked the applicant for her reason to study in Australia. The applicant stated that her primary reason to study in Australia was to gain Australian qualifications and utilise the acquired knowledge in her husband’s future overseas business. We’re instructed that in developing countries, like India, an educational qualification from English speaking countries is highly regarded. Under the ministerial direction, decision-makers should allow for any reasonable motives as established by the applicant. The tribunal member paid little significance to this factor in weighing up the applicants’ claims. (CB- 114 to 117)
In fact, the Tribunal expressly considered the applicants’ claim that an educational qualification from Australia is highly regarded in India. The Tribunal found at paragraph 32 of its reasons for decision that the source of an educational qualification is irrelevant for people who open their own business, as the applicants intended to do. The Tribunal said at paragraph 32 of its reasons for decision:
When asked why you do not study at home, you say Australian qualifications are considered more valuable. As the Tribunal said to you, if it is your intention to open your own business, the source of your qualifications is irrelevant.
The point for present purposes is that the Tribunal did in fact consider whether the first applicant had sound reasons for studying in Australia. The Tribunal considered that the first applicant’s reasons for studying in Australia were not sound, because the source of the first applicant’s qualifications was irrelevant for a person who intends to open their own business.
In respect of paragraphs 9(b) to 9(e) of Direction No 53, the applicants said:
We submit that the mandatory factors contained under sub paragraphs 9(b)-(e) were completely ignored by the tribunal member as no reference to these factors was made in the tribunal’s decision record. The applicants contend that these factors benefitted the applicant in their assessment as genuine temporary entrants and could be a reason why they were excluded. (CB- 114 to 117)
It has been submitted earlier that applicants had significant family/employment ties in India and provided a personal and economic incentive for the applicant to return to India. The applicants were not liable for any military service commitments and an absence of such a commitment could be understood as a significant incentive for the applicants to return to their home country.
Furthermore, the tribunal member ignored paragraph 9(e), in saying that, there was/is no political or civil unrest in India which could have influenced the applicants’ motivations for applying for a student visa and staying in Australia. Again, an absence of political & civil unrest and the economic growth in India provides a significant incentive for the applicants to return and start their business.
In fact, as required by paragraph 9(b) of Direction No 53, the Tribunal expressly considered the applicants’ family ties. The Tribunal said at paragraph 33 of its reasons for decision:
While I acknowledge you have family back home, which may provide some incentive to return, you and your husband appear settled in Australia. …
This was in response to the applicants’ claim in her letter dated 17 February 2016 (CB65) that:
I have strong family ties in India as my parents and in-laws and other siblings/relatives live permanently in India, besides having other social ties within India. My husband is planning to open [a] sizeable automotive business in Punjab…
Contrary to the applicants’ submission, they did not claim to have existing employment ties in India. They only mentioned plans for the future, without any solid foundation for their future employment or business in India. In these circumstances, the Tribunal’s conclusions on this issue were more than adequate.
In respect of paragraph 9(c) of Direction No 53, the Tribunal said at paragraph 33 of its reasons for decision:
…You say you have been working as a pastoral care worker in aged care for the past couple of years and your husband has been a truck driver for at least three years. So while you say it is your intention to return home, having been here for over 8½ years you now seek to remain for a further year and a half. Your words and your actions seem to be different. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history[.]
Clearly, the Tribunal thereby considered the Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country, as required by paragraph 9(c) of Direction No 53.
In respect of paragraphs 9(d) and 9(e) of Direction No 53, the applicants made no submissions about military service or political unrest. There is no suggestion that military service is required of people like the applicants in India or that political unrest existed in India at the time of the Tribunal’s decision. Consequently, those factors could have gone into the balance as positives for the applicants, making it more likely that they did in fact intend to return to India. However, Kumar at [102] to [108] makes it clear that the Tribunal was not obliged to refer expressly to 9(d) and (e) or give them any particular weight in its reasons for decision in the matter.
As in Kumar, it is clear that the Tribunal in the present matter was aware of Direction No 53, and dealt expressly with the matters about which there was evidence or submissions. That was sufficient.
Essentially, the applicants’ complaint under this ground seems to be that the Tribunal did not accept their claims, or did not give more weight to particular aspects of their claims than it did. These are complaints that go to the merits of the decision, rather than to whether jurisdictional error occurred.
e. other relevant matters
The applicants also noted paragraph 16 of Direction No 53, which is as follows:
16.Decision makers must also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
(applicants’ emphasis)
The applicants said in their written submissions about this factor that:
Lastly, as per paragraph 16 of the direction, the decision maker is bound to have regard for any other relevant information provided by the applicant. At the 20th minute of the hearing, the member asked the applicant about her academic progress. When the applicant said that she has already explained her study gaps, the tribunal member can be heard saying, “I am not interested in gaps…”.
The applicant informed that the Diploma of Management in which she was enrolled, was deemed ‘short’ and her course provider asked her to enrol for Cert IV in Frontline Management. She did get 6 credit points for this partially completed Diploma of Management, which has been attached to the amended application. We submit that the applicant shouldn’t have been held responsible for a delay caused by the education provider. We further submit that the tribunal member miscalculated the total duration of the applicant’s study during her stay in Australia which has been further elaborated in Ground - 3. (court’s emphasis)
The question of study gaps was addressed above. To the extent that the pages appended to the amended application to this court were not before the Tribunal, they cannot be relied upon to establish that the Tribunal made a jurisdictional error. Moreover, they do not, on their face, establish how long the totality of the courses undertaken by the applicant took. One certificate shows that the first applicant undertook an intensive English language course for 100 hours in June 2009, and another certificate shows that the first applicant did an advanced diploma of leadership and management from 30 June 2016 to 2 November 2017. But other certificates say nothing about the course duration.
In addition, the Tribunal expressly noted at paragraph 29 of its reasons for decision the first applicant’s claim that one of her study gaps was due to the relevant educational institution not being able to provide the course. Nevertheless, the Tribunal considered that the applicants had not provided a reasonable explanation for the study gaps. That was a matter for the Tribunal, as the trier of fact, to decide.
It is apparent that the Tribunal considered the various factors it was required to consider, but simply weighed them in a way that did not suit the applicants. This is not indicative of jurisdictional error. Ground 1 is not made out.
GROUND 2
The second ground of review in the application is:
Asking irrelevant questions.
Particulars
(a)The learned tribunal member took a number of irrelevant considerations during the conduct of the hearing. One such remark made by the tribunal member in paragraph 14 of the decision record to the effect that “The tribunal finds it bizarre that you would study a course that your husband has already completed.”
(b)A specie of an error of law as specified under Craig v South Australia1, a decision where the decision maker asks the wrong question and takes into account irrelevant condition, that decision can be impugned by the court as it is infected with jurisdictional error.
(c)At the 18th minute of the tribunal hearing, the remark made by the learned tribunal member gives the impression that the tribunal member failed to consider the applicant’s matter as a whole and only decided the application based on the information that the applicant’s husband had already done the Diploma in Leadership and Management and it made no sense to him if the applicant did the same course. The tribunal member ignored the response given by the applicant to support her proposition.
(d)At paragraph 34 of the decision record, the tribunal has although stated that it has considered the applicants’ circumstances as a whole, but in reality, a number of mandatory factors were ignored and a number of irrelevant considerations were taken into account. The remarks repeatedly made by the tribunal member prove that the tribunal only considered the evidence it pleased and gave no weightage to the responses given by the applicant. These actions amount to an error of law and impugn the decision so made.
FN 1: Craig v South Australia (1995) 184 CLR 163
In their written submissions filed on 27 September 2022, the applicants said in relation to this ground:
We submit that tribunal fell into jurisdictional error due to asking a series of irrelevant questions and identifying wrong issues. Their honours in the landmark High Court’s decision of Craig v South Australia7 paved the way for this particular specie of jurisdictional errors which are outlined in this ground. …
We submit that the learned tribunal member took a number of irrelevant considerations during the conduct of the hearing. One of such remarks made by the tribunal member is found at paragraph 14 of the decision record, where the tribunal member stated “The tribunal finds it bizarre that you would study a course that your husband has already completed.” (CB-116 at pp16)
We submit that the tribunal asked itself a wrong question whereby it considered the relevance of educational courses completed by the applicant and her husband. Such considerations are not relevant nor permitted under the ministerial directions, therefore have no basis.
In paragraph 25 of the decision record and/or at the 37th minute of the recording the tribunal member implied that the applicant has only completed inexpensive courses in Australia and they could have studied more cheaply in India and there was no reason for the applicant to be studying in Australia if their intention was to open a business in Australia. These remarks made by the member makes it clear the tribunal has asked itself irrelevant questions and had drawn incorrect inference based on such considerations.
At the 10th minute of the hearing, the tribunal member made a remark that the applicant had been in Australia for more than 8 years but still needed an English interpreter, this made him wonder if the applicant was a genuine student. This remark proves that the tribunal member was somewhat prejudiced and that he had already made up his decision and wasn’t willing to intellectually and genuinely consider the responses provided by the applicant.9 Such unjustified remarks and irrelevant considerations taken into account by the tribunal member made the applicant overwhelmed.
FN 7: Craig v South Australia (1995) 184 CLR 163 at 179.
FN 8: Ibid.
FN 9: MIAC v Khadgi (2010) 190 FCR 248 at [57].
The applicants appear to have somewhat misinterpreted Craig v South Australia (1995) 184 CLR 163; (1995) 39 ALD 193; (1995) 131 ALR 595; (1995) 69 ALJR 873; (1995) 82 A Crim R 359; [1995] HCA 58. It is not a jurisdictional error to ask a wrong question during the hearing. Courts and Tribunals, during hearings, can go off on irrelevant tangents without falling into jurisdictional error. Craig was concerned with a decision maker addressing the wrong question in its reasons for decision, with the result that the decision maker did not ever address the right question. That is not what occurred in the present case.
Moreover, it was not irrelevant for the Tribunal to consider the courses that the applicants had undertaken. The nature of the courses was relevant to assessing whether the first applicant was a genuine temporary entrant, because the nature of the courses could shed light on whether the first applicant was doing courses that would be of real benefit to her on her return to India. Indeed, Direction No 53 required the Tribunal to consider the value of the courses to the first applicant’s future in India.
Similarly, it was not irrelevant for the Tribunal to note that the first applicant was only doing inexpensive courses, because that tended to show that the first applicant was using her study in Australia as a smokescreen for her actual intention, which, the Tribunal evidently thought, was to stay in Australia permanently.
It was not unreasonable for the Tribunal to note that a person who claimed to have been studying in Australia for 8.5 years needed an interpreter for the Tribunal hearing. It was open to the Tribunal to enquire about this, as it could be expected that 8.5 years of study in Australia, doing courses in English, would have made a genuine student proficient in English.
To the extent that the applicants may have been alleging bias on the part of the Tribunal, this is an allegation that must be clearly alleged and proved. The allegation has not been made clearly enough to warrant any further consideration by the court. The original application contained express allegations of bias, but they were deleted in the amended application.
Ground 2 is not made out.
GROUND 3
The third ground of review in the application is:
Illogical fact finding by the tribunal.
Particulars
(a)In the decision record, the tribunal member has erroneously stated in paragraphs 18 and 31 that the applicant studied only for a period of three and a half years in a period of eight and half years since the time the applicant had been in Australia.
(b)Upon careful analysis of the court books, decision record and the audio recording of the hearing the applicant contends that the tribunal had no evidence before it that stated the duration of courses completed by the applicant. The applicant submits that Certificates III and IV in Management (Commercial Cookery) alone were more than 4 years in duration. Cert IV in Frontline Management and Advance Diploma in Leadership and Management took more than one year each to complete. The gaps in education were many because of the course provider not being able to provide the selected course.
(c)Furthermore the tribunal member failed to acknowledge and take into account the short ELICOS completed by the applicant. The total duration of study the applicant undertook at the time of merits review was approximately 7 years in the 8.5 years. The applicant has college certificates that confirm her fulltime enrolment but for some reason the member was not willing to listen to the applicants.
(d)The calculation of this study duration by the tribunal member had no evidentiary basis. The finding so made was arrived at illogically thereby invalidating the decision made by the tribunal.
In their written submissions filed on 27 September 2022, the applicants said in relation to this ground:
With respect to this ground, we submit that the tribunal member made a significant error of law which was illogical and had no evidence before him for the finding that he made.
In Fiorentino v Companies Auditors and Liquidators Disciplinary Board10 per Wigney J at [76]:
A decision will be considered unreasonable or irrational if it lacks an evident and intelligible justification.
Upon careful analysis of the court books, tribunals decision record and the audio recording of the hearing the applicant contends that the tribunal had no evidence before it which stated the duration of courses completed by the applicant. At 20th minute of the tribunal hearing, the tribunal member can be heard arbitrarily adding the duration of the courses completed by the applicant. However, the court book filed by the respondent only contained the award certificate which had no description of course durations.
We are instructed by the applicant that the collective duration of Certificates III and IV in Management (Commercial Cookery) completed by the applicant was more than 4 years. Cert IV in Frontline Management and Advance Diploma in Leadership and Management each took more than one year to complete.
Furthermore, the tribunal member failed to take into account the one-month ELICOS completed by the applicant. We’re instructed that the total duration of study the applicant undertook at the time of merits review was approximately 7 years in the 8.5 years. The applicant instructs that she has college certificates that confirm her full-time enrolment but for some reason, the member was not willing to listen to the applicants. Certificates of completion of all courses completed by the applicant are attached to the applicant’s amended application and marked as (Attachment-1).
The concept of this particular specie of jurisdictional error can be understood referring to the High Court decision of Minister for Immigration and Citizenship v SZMDS11, per Crennan and Bell JJ at [131] :
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.
We ultimately submit that the calculation of this study duration by the tribunal to assess the applicant under GTE Criterion member was illogical, had no evidentiary basis and was materially flawed thereby invalidating its decision and establishing this ground of appeal.
FN 10:Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 at [76]
FN 11:Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
The Minister conceded that the Tribunal would have fallen into jurisdictional error if it had made a finding about how long the first applicant had actually studied for, because there was no evidence of that. However, the Minister submitted that the Tribunal’s actual finding was that the first applicant had successfully completed courses with a normal duration of 3.5 years: [18] of the Tribunal’s reasons for decision. The Minister submitted that, if the first applicant had taken an abnormally long time to successfully complete her courses, that would go to whether she was a genuine temporary student. The Minister also submitted that the Tribunal, which deals with student visa matters routinely, is able to use its own experience of how long different courses take. In that regard, the Minister referred to Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; (2022) 397 ALR 1; [2022] FCAFC 3 at [39] where Allsop CJ described the legitimate bases for an assessment by the Minister (or the Tribunal) as including:
… common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department …
It is well established that the no evidence ground can only succeed if there is not a skerrick of evidence before the Tribunal on the point: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; (2005) 228 ALR 28; [2005] FCA 1707 at 587 [575] per Weinberg J. The Tribunal put to the applicants during the Tribunal hearing its view of the normal duration of the courses that the first applicant had successfully completed, and the first applicant said that she understood and then went on to explain that a course provider had failed to deliver a course: T:11.15-27. The Tribunal then gave the applicants two opportunities at the end of the hearing to say anything else that they wished. The Tribunal’s own knowledge of the normal duration of various courses, combined with the applicants’ failure to provide any evidence or submissions to contradict the Tribunal’s stated view that the first applicant had only successfully completed courses with a normal duration of 3.5 years, after being in Australia for 8.5 years, provided a sufficient basis for the no evidence ground to fail.
The documents appended to the amended application did not contain evidence of the total duration of the first applicant’s studies in Australia. It follows that they cannot be used to prove that the Tribunal made a factual error about the actual duration of the various courses undertaken by the first applicant. In any event, a factual error would not establish jurisdictional error. Moreover, documents that were not before the Tribunal are not admissible to prove an error of fact: Waterford v Commonwealth (1987) 163 CLR 54; (1987) 12 ALD 741; (1987) 71 ALR 673; (1987) 61 ALJR 350; [1987] HCA 25.
In relation to illogicality and unreasonableness, the applicants relied on Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 at [76] where Wigney J said:
The principles relating to jurisdictional error arising from legally unreasonable administrative decisions have recently been considered by the High Court in Li and the Full Court in Singh. Both cases concern the legal unreasonableness of decisions of the Migration Review Tribunal to refuse to adjourn review applications to allow an applicant to attend to matters that might satisfy criteria for the grant of a visa. The general principles, so far as they are relevant to this matter, may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must generally lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221); Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48].
(g)If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82].
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
To succeed on the unreasonableness or illogicality ground, the applicants have to show that the Tribunal’s decision was one at which no rational or logical decision-maker could have arrived on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ. The decision that must be found to be illogical or unreasonable is the ultimate decision that the first applicant was not a genuine temporary entrant, not the finding about the first applicant only successfully completing 3.5 years of courses after 8.5 years in Australia.
The particular illogicality or unreasonableness that the applicants relied on was that the Tribunal considered that the first applicant had only successfully completed courses with a normal duration of 3.5 years after being in Australia for 8.5 years. However, as discussed above, the applicants have not established that the Tribunal’s view of the normal duration of the courses undertaken by the first applicant was wrong, and therefore there is no proper basis for the illogicality and unreasonableness argument.
Moreover, while generally it is not for this court to consider the merits of the case, when considering an illogicality or unreasonableness ground of review, the court is required to consider whether, on the merits, the decision is logical and reasonable.
In my view, it was logical and reasonable for the Tribunal to have concluded that the first applicant was not a genuine temporary entrant, whether she had successfully completed courses with a normal duration of seven years in her 8.5 years in Australia (as the applicants asserted without evidence), or 3.5 years (as the Tribunal found). That was because of the other findings made by the Tribunal, namely, that:
(a)the first applicant was studying courses that her husband had already completed;
(b)the first applicant had significant study gaps;
(c)the first applicant had studied commercial cookery, but said she intended to assist her husband in his prospective automotive business;
(d)the husband’s plan to open an automotive business was bizarre, given he had only studied a one year automotive mechanical technology course over 10 years ago and had no experience in the area;
(e)the first applicant only enrolled in relatively inexpensive, low-level courses, even though she had a Bachelor of Arts from India;
(f)the first applicant claimed to have come to Australia to study hospitality, which she could have finished in three or four years, but instead did management courses;
(g)the first applicant told the Tribunal she wanted to do an MBA, which she said was a Master of Arts, rather than a Master of Business Administration (T:6.1-26), and appeared to the Tribunal to have not given any serious thought to studying a higher degree;
(h)at the time of the delegate’s decision, the first applicant had not been studying for three months; and
(i)the applicants have stable work in Australia, the first applicant having worked in aged care for two years and the second applicant having worked in the same field for three years.
Against those matters were that the applicants have family in India, and there was no civil unrest there or any requirement for the applicants to do military service.
In the circumstances of this case, the decision of the Tribunal that the first applicant was not a genuine temporary entrant was not illogical or unreasonable, even if the finding about 3.5 years of successful course completion, as opposed to seven years, is excluded. However, I cannot proceed on the basis that the first applicant successfully completed courses with a normal or actual duration of seven years, because that evidence was not before the Tribunal. Moreover, as mentioned above, there was an evidentiary basis for the Tribunal to conclude that the first applicant had only successfully completed courses which normally took 3.5 years after being in Australia for 8.5 years. It follows that the irrationality and unreasonableness ground cannot succeed.
CONCLUSION
As none of the applicants’ grounds have been made out, the application must be dismissed with costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 28 April 2023
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