Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1176
•11 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1176
File number(s): MLG 1300 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 11 December 2023 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 573) visas – whether Tribunal failed to consider mandatory factors of Ministerial Direction No. 53 – where failure to consider was material – application allowed. Legislation: Migration Act 1958 (Cth) ss.476, 499
Migration Regulations 1994 (Cth) regs.572.221, 572.222, 572.223, 573.223
Cases cited: Bat Advocacy NSW Inc v Minister for Environment, Protection, Heritage and the Arts [2011] FCAFC 59
Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438
Sharma v Minister for Immigration & Border Protection [2015] FCCA 575
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 24 August 2023 Date of hearing: 7 September 2023 Place: Melbourne Counsel for the Applicants: Mr J Lessing Solicitor for the Applicants: Christopher James Lawyers Counsel for the Respondents: Ms J Lucas Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1300 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: INDERJIT KAUR
First Applicant
HAWINDER SINGH
Second Applicant
JAGROOP SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application (as amended on 11 August 2023) be allowed.
2.The First Respondent pay the costs of the Applicants fixed in the sum of $8,371.30.
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 Mansini
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (Tribunal) pursuant to s.476 of the Migration Act 1958 (Cth) (Act). In that decision, the Tribunal affirmed a decision of a delegate of the First Respondent Minister not to grant the Applicants Student (Temporary) (Class TU) (Subclass 573) visas (student visa).
For the reasons that follow, the application is allowed with costs.
FACTUAL CONTEXT
The First Applicant is a female citizen of India. Her husband and son are the Second and Third Applicants respectively (together, the Applicants).
The First Applicant arrived in Australia in 2008 on a student visa. She was subsequently granted three further student visas and an employer-sponsored work visa under s.457.
On 7 June 2016, the First Applicant applied for a new student visa with the Second and Third Applicant listed as secondary applicants.
On 10 October 2016, a delegate of the First Respondent refused to grant the Applicants visas and provided a decision record (first delegate decision). The delegate found that the First Applicant did not hold a current enrolment in an acceptable course of study.
On 31 January 2017, on application to it for review of the first delegate decision, the Tribunal decided to remit the matter on evidence of enrolment in a Bachelor of Hospitality and Tourism (first Tribunal decision).
On 31 March 2017, a delegate of the First Respondent refused to grant the Applicants visas (second delegate decision). The delegate found that the Applicant did not meet the mandatory statutory criteria of a “genuine temporary entrant”.
On 10 April 2018, on application to it for review of the second delegate decision, the Tribunal affirmed the second delegate decision (Reasons). It is those Reasons that are subject of this application for judicial review.
At the time of the Reasons, the First Applicant’s application for judicial review of the cancellation of her employer-sponsored work visa remained pending.
STATUTORY CONTEXT
At the relevant time, the criteria for the grant of a student (Temporary) (Class TU) visa at the time of the application was set out at cl.572.221-572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Relevantly, the criteria at cl.573.223(1), (1A) and (2) of Schedule 2 to the Regulations provided:
572.223
(1) 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) 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 meets the requirements of subclause (1A) or (2).
(1A) If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:
(a) the applicant gives the Minister evidence that the applicant has:
(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2) If subclause (1A) does not apply:
[…]
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter.
By s.499(2A) of the Act the Tribunal was required to comply with a direction given by the Minister under s.499(1). Ministerial Direction No. 53 – Assessing the genuine temporary entrant criterion for Student visa applications (as in force at the relevant time) (Direction No. 53). The direction was made pursuant to s.499(1) and relevantly provided that:
9.In 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 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 a 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.
[…]
11.In considering the applicant’s potential circumstances in Australia, decision makers must have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties.
b.Evidence that the Student visa program is being used to circumvent the intentions of the migration program.
c.Whether the Student visa is being used to circumvent the intentions of the migration program.
d.Whether the primary and second applicant(s) have entered into a relationship of concern for Student visa purposes. Where it has been determined that an applicant and dependant have contrived their relationship for Student visa purposes, the decision maker can find that both applicants do not satisfy the genuine temporary entrant criterion.
e.The applicant’s knowledge of living in Australia and their intended course of study and associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
[…]
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.
THIS APPLICATION FOR JUDICIAL REVIEW
By the amended application filed on 11 August 2023, the Applicants pressed three grounds.
Second ground
The second ground of review was expressed as follows:
2. The Tribunal failed to consider (or properly consider) the applicants’ ties to India and Australia as an incentive to return to India.
Particulars
a. The applicants claimed they had significant personal ties to India, and limited ties with Australia.
b. These were matters that engaged cll 9(b), 11(a) and 16 of Ministerial Direction 53.
c. The Tribunal was required to consider those claims.
d. It failed to do so.
e. The error was material.
(sic.)
The respective contentions
The Applicants pointed to claims of significant personal, cultural and material ties in India and limited personal and community ties in Australia, including of: the First Applicant’s parents who reside in India and for whom she was expected to have carer’s obligations as they grow older; the First Applicant’s siblings who reside in India; the Second Applicant’s entire family who reside in India; the Second Applicant’s family land and home and obligations to look after them in India. They said these were matters that engaged the mandatory considerations at cl.9(b), 11(a) and 16 of Direction No. 53 and the Reasons did not disclose any apparent consideration or findings in relation to this claim or an active intellectual engagement with cl.9(b) or 11(a) as required.
In summary, the First Respondent contended that a fair reading of the Reasons would lead the Court to conclude that the Tribunal engaged in an active intellectual process and gave genuine consideration to the factors set out in Direction No. 53 to the extent necessary to the circumstances of the First Applicant.
The First Respondent highlighted that the Tribunal gave some express consideration to the First Applicant’s circumstances in her home country by reference to her son being a good cricketer and related need to stay in a big city in India and the need to get more qualifications to get a job. Further, that the First Applicant conveyed she would go home as soon as she finished her study. In making these submissions, it sought to rely on paragraphs [51]-[54] of the Reasons.
However the First Respondent also pointed to the Tribunal’s reference to discussions with the First Applicant as to why she had not completed the hospitality studies being reason why she came to Australia in the near 10 years since she arrived, as well as her significant visa history which included three different business nominations and one lodged four months after lodgement of her student visa application – and its conclusion that the First Applicant’s primary aim is to remain in Australia for the purpose of employment and examining other migration pathways rather than genuine pursuit of academic progress: it pointed to [45]-[46], [60] and [65]-[69] of the Reasons. The First Respondent asked the Court to find that these findings concerning her enrolment, visa and study history demonstrated that the First Applicant’s family ties assumed little or no practical relevance to the Tribunal’s consideration of her circumstances. And, in any event, the Tribunal expressly referenced written submissions which contained the detailed claims said to have been overlooked and stated that it had considered her claims as a whole including as to the issues in Direction No. 53: in this respect, it pointed to [23], [56] and [73] of the Reasons.
Consideration
At the relevant times, the First Applicant was required to satisfy the criteria at cl.573.223(1) of the Regulations (among other criteria to be satisfied). By that provision, the decision maker was to be satisfied that the First Applicant was a genuine applicant for entry and stay as a student because they were satisfied that she intended genuinely to stay in Australia temporarily having regard to the limbs of cl.573.223(1)(a)(i) to (iv) including her circumstances, the immigration history, the intentions of a parent, legal guardian or spouse of a minor applicant and any other relevant matter.
The Tribunal was also required to have regard to Direction No. 53, issued pursuant to s.499 of the Act. The preamble to Direction No. 53 specifically stated that it was binding on all decision makers by way of guidance as to the factors to be considered in weighing up the criteria at cl.573.223(1)(a)(i) to (iv) to determine whether the applicant genuinely intends to stay in Australia temporarily.
It is well-established, and in the present case accepted, that the failure to give any weight to a factor to which a decision maker is bound to have regard, in circumstances where that factor is of great importance having regard to the particular circumstances of the case, may support an inference that the decision maker did not have regard to that factor at all. Whether such inference may be drawn will turn on the particular facts and circumstances of each case: Bat Advocacy NSW Inc v Minister for Environment, Protection, Heritage and the Arts [2011] FCAFC 59 at [44]; Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438 at [58]-[59]; [2010] FCAFC 145 (Khadgi).
However the Tribunal was not required to mention every factor in Direction No. 53: Sharma v Minister for Immigration & Border Protection [2015] FCCA 575 at [14] (citing Khadgi).
According to the materials on the Applicant’s file, in relation to the matters it is contended that were not considered, there was evidence in the form of the original student visa application signed 6 June 2016, which cited relatives of the First Applicant as: her husband whose immigration status in Australia was temporary; her son in Australia, as her dependent; and her father who was identified as her closest relative in India who was neither accompanying nor joining the First Applicant in Australia and also her source of funds.
In response to a specific invitation of the Tribunal to give evidence at a hearing before it, and to provide it with all documents relied on to establish that the student visa criteria were met (which invitation included a copy of Ministerial Direction No. 53), there were written submissions of the Applicants’ representative (made to the Tribunal on 19 March 2018) which addressed the First Applicant’s claimed ties to her home country and significant incentives to return home at the end of her stay in Australia. More specifically, there were submissions that the delegate misunderstood the Applicant’s personal and cultural obligations and ties in concluding that her family ties in India were not significant and providing more information about the First and Second Applicant families and obligations in India; and submissions about their immediate family in Australia and intentions to educate their son in India and their discussions about the best locations for schooling in India given the son is a good cricketer and qualifications needed for jobs in those areas.
The Tribunal’s hearing record reflected that the First Applicant gave evidence at the Tribunal hearing on 23 March 2018.
In its Reasons, the Tribunal made express reference to the First Applicant’s evidence that as soon as she finished her study she would go home to India and considered her employment prospects at a good hotel to be strong: at [54] and [58].
There were some additional references in the Reasons to the First Applicant’s evidence given at the Tribunal hearing about her son and her intentions to live in a big city on return to India because he is a good cricketer – and her evidence that, for this, she needed to get more qualifications to get a job: at [51] of the Reasons. Whilst those are matters that may fairly be characterised as relevant to the Applicant’s circumstances in terms of her (immediate family) ties to Australia and her intentions on return to India, in my view they may not fairly be characterised as references to the material before the Tribunal of the Applicant’s personal (family and extended family) ties to India or whether they would serve as a significant incentive to return to her home country of India.
The Tribunal was cognisant of the migration agent’s oral submissions at hearing - it referenced the substantial detail on the issues of Direction No. 53 in the Applicants’ written submission and the argument that the delegate had focussed too narrowly on those issues: at [56] of the Reasons, see also a reference to those submissions in the context of the genuine temporary entrant issues at [4] and [23]. Those global references to the written submissions and the issues of Direction No. 53, without more, can not sustain an argument that the failure to consider the matters complained of here were not overlooked.
The Tribunal was not required to specifically mention every factor of Direction No. 53 in its Reasons. However, there is simply no indication on the face of the Reasons that any regard was had to the First Applicant’s family ties in India which was not just of her own parents and siblings but her extended family in terms of her parents-in-law and their children being parents and siblings of her husband – collectively, grandparents, aunts and uncles to the First Applicant’s child. There was no engagement with the argument that the extent of these ties was significant because of the cultural importance of family and the Applicants’ obligations in this respect (or otherwise).
It may be accepted that the Tribunal also considered other factors critical to the genuine temporary entrant assessment and that the weight to be attributed to the relevant factors was a matter for the Tribunal. However, the Tribunal was required to consider the extent of the First Applicant’s personal ties to India and whether this would constitute significant incentive for her return to India. The evidence before the Tribunal about the First Applicant’s family, her extended family, and the familial obligations (of herself and her husband) with cultural import were a critical and fundamental component of the materials with which the Tribunal was obliged to engage at the level of an active, intellectual engagement. The complete absence of reasons in this respect lends, in the particular circumstances of the present case, to an inference that those matters were overlooked.
In the present case, it is apparent that the materials that were overlooked, which were relevant to at least the factors at cl.9(b) and perhaps also other matters at cl.16 in Direction No. 53 and which the Tribunal was also required to take into account, were critical and material.
For completeness were the above conclusion not available then I would consider, at best, that the Tribunal’s global references to the written submissions amounted to no more than a cursory consideration which was dismissed as irrelevant in error.
For these reasons, the second ground of review succeeds.
As it is strictly unnecessary to do so, I decline to determine the remaining grounds of review.
CONCLUSION
For the above reasons, the application for review is allowed with costs in the amount of $8,371.30.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 11 December 2023
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