Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 42
•14 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 42
File number(s): MLG 3367 of 2018 Judgment of: JUDGE EGAN Date of judgment: 14 September 2021 Catchwords: MIGRATION – Application for further Student Visa – first applicant had lived in Australia since 2007 – finding that first applicant did not have a genuine intention to remain in Australia only temporarily – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth), Schedule 2, cl 520.212
Ministerial Direction No. 69
Cases cited: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 31 August 2021 Date of hearing: 31 August 2021 Counsel for the Applicants: Mr A. White Solicitor for the Applicants: AR Law Services Counsel for the First Respondent: Mr J. Lessing Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3367 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: PARAMJEET KAUR
First Applicant
JASPREET SINGH
Second Applicant
JASANJOT SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
14 SEPTEMBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Further Amended Application for Review filed on 10 August 2021 be dismissed.
3.The First Applicant and Second Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.
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 EGAN:
Introduction
The first applicant is a citizen of India who arrived in Australia in 2007 holding a Student Visa. The second applicant is a citizen of India and is the first applicant’s husband. The third applicant is a citizen of India, and is the son of the first and second applicants.
On 27 September 2017, the first applicant applied for another Student (Temporary) (Class TU) (Subclass 500) Visa. The second and third applicants applied as members of the first applicant’s family unit.
On 30 November 2017, a delegate of the Minister refused to grant the visa to the applicants.
On 18 December 2017, the applicants applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.
On 22 October 2018, the Tribunal affirmed the decision of the delegate.
On 8 November 2018, the applicants filed an Originating Application for Review of the Tribunal’s decision.
At the hearing before the Court, the applicants relied upon a Further Amended Application for Review filed on 10 August 2021.
Ground of Review
The Ground of Review, as set out in the Further Amended Application for Review, was as follows:
“Grounds of application
The Tribunal’s decision was affected by jurisdictional error for the following reasons:
1. The Tribunal failed to comply with the terms of Direction 69 and/or engaged in irrational or illogical reasoning by its failure to consider in the relevant legal sense the relative affluence of the Applicants and their family in India as a matter relevant to incentive to remain in Australia or return to India.
Particulars
A. The Applicants submitted to the Tribunal that they and their families were relatively wealthy in India and that this was an incentive for them to return to India: see CB240.
B. The Tribunal accepted that the Applicants' parents were "relatively affluent" in India: at [27], CB305.
C. Clauses 9(c) and 10 of Direction 69, which bound the Tribunal, required the Tribunal to consider the Applicants' circumstances relative to others in India as a matter relevant to incentive to remain in Australia or return to home country.
D. The Tribunal failed to apply clauses 9(c) or 10 by failing to consider the Applicants and their family's relative affluence in India as a matter relevant to incentive to return to India.
E. The Tribunal engaged in illogical or irrational reasoning by considering the general economic circumstances in India as relevant to incentive to remain in Australia, divorced from the Applicants' actual financial circumstances: at [25] and [29] (CB305).
F. In the premises, the Tribunal committed jurisdictional error.”
Consideration of Ground of Review
Ground 1 of the Further Amended Application was a claim that the Tribunal failed to comply with the terms of Ministerial Direction No. 69, specifically clauses 9(c) and 10, and that the Tribunal had engaged in irrational or illogical reasoning in its failure to consider the relative affluence of the applicants, and their family in India, as a matter relevant to assessing their incentive to return to India. Clauses 9(c) and 10 of the Ministerial Direction No. 69 relevantly provided as follows:
“The applicant’s circumstances in their home country
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a. …
b. …
c. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d. …
…
10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.”
At the commencement of the Ministerial Direction, it was made clear that the Direction was for guidance only. It relevantly provided as follows:
“This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.”
Clause 1 of the Direction was as follows:
“Assessing the genuine temporary entrant criterion
1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.”
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39], when discussing the intended operation of the Ministerial Direction which preceded Ministerial Direction No. 69, Logan J said as follows:
“[39] In my opinion, aside from the kind of circumstances which arose in Paerau (and which, like Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, were also affected by the operation of s 500(6H) of the Migration Act), the trend of authority in this Court supports the proposition that in order to give effect to the terms of s 499(2A) (and subject to any validity issues about a particular Direction), a failure by a decision-maker or Tribunal to comply with a clear obligation imposed by a s 499 direction should be characterised as meaning the decision-maker or Tribunal constructively failed to exercise its jurisdiction, or strayed outside its jurisdiction. Put another way, where there is a valid direction made under s 499 of the Act and s 499(2A) applies, any obligations imposed by that direction as part of the statutory task of the decision-maker are, and are intended by the scheme of the Migration Act by reason of the presence of s 499(2A), to be an essential or inviolable limitation on the power conferred by the relevant provisions of the Migration Act (here, s 501CA(4)): see generally Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76]. I emphasise that this analysis assumes, rather than decides, that a Direction made under s 499, such as Direction No. 65, is capable of imposing on decision-makers the kind of mandatory obligations it purports by its language to do, by (for example) making certain matters mandatory considerations and requiring decision-makers to determine certain matters. The larger question of whether a s 499 Direction can achieve this result in relation to a wide statutory discretion, is the one I left open in Williams, and as far as I am aware, it has not been finally determined in this Court, or by the High Court (but see Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 at [77], cf Jagroop at [78]).”
The Tribunal’s decision to affirm the decision of the delegate was based on its finding that the first applicant did not meet the criterion of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 500.212 of the Regulations relevantly provided as follows:
“500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.”
At [19] of its reasons, the Tribunal set out the relevant factors of the Direction to which it must have regard when considering whether the first applicant satisfied the criterion of cl. 500.212 of the Regulations. The relevant factors were as follows:
· “the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
· the applicant’s immigration history, including previous applications for a Australian visa or visas to other countries, and previous travel to Australia or other countries;
· if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
· any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.”
At [22] – [25] of its reasons, the Tribunal appropriately made findings relating to the first applicant’s relevant past visa history, her time with her family in Australia, the work that had been carried out both by her in Australia, and her relationship with study in Australia, saying as follows:
[22] As previously noted, the applicants arrived in Australia on 17 July 2007 on a TU 573 Student visa. The visa was subject to condition 8516 which requires the visa holder to continue to be a person who would satisfy the primary condition for the grant of a visa. According to her evidence her poor English proficiency prevented her from enrolling in the bachelor's course. The applicant chose to enrol in various Certificate and Diploma level courses in the VET sector for the first five years of her time onshore and was therefore in breach of condition 8516 for this period until 8 August 2015, when she enrolled in a Bachelor of Business (Management).
[23] The applicant completed the business degree on 30 July 2017, then enrolled to complete additional units in the degree. This portion of the business degree was to be completed by 29 July 2018, however the applicant finished the course some six weeks earlier, on 7 June 2018.
[24]The applicant and her husband have both been continuously employed at SPG International for more than four years; according to his tax returns for 2015 to 2017 inclusive, he was earning an excellent salary notwithstanding the work rights limitation attaching to his dependent visa:
•Jaspreet Singh : Australian Income Tax Returns –
•FY 2015 - Taxable income of $35,574
•FY 2016 - Taxable income of $38,365
•FY 2017 - Taxable income of $40,928
[25]The Tribunal finds that both the applicant and her husband have established a working lifestyle in Australia for the 10 or so years they have been in Australia. The dependent applicant, Jaspreet Singh, in particular, has been earning in recent years an annual salary well in excess of the average annual salary in India. The Tribunal finds that the applicant's slow progress in her studies over more than a decade in Australia is possibly because the applicants' primary motivation for wishing to remain in Australia is not for the primary applicant to progress academically but for ·both applicants to continue in well-paid employment in Australia.”
(footnotes omitted)
At [26] – [29] of its reasons, the Tribunal relevantly made findings in relation to the applicants’ circumstances in her home country, saying as follows:
“[26] The Tribunal has had regard to the applicant's circumstances in India. The applicant's parents and her in-laws "are well-settled and can [and do] support us ... " In oral evidence, the applicant stated that in 2015 her husband invested in a school in India. In response to the Tribunal's question regarding the source of his investment capital, the applicant stated that her husband's investment funds came "from agri-profits." However the applicant offered no supporting evidence of the source of these funds.
[27] The Tribunal acknowledges the applicant has her own family and in-laws (who are relatively affluent) in their home country. To date these family ties have not been sufficient to motivate the applicant to conclude her studies or return home except for a few holiday visits.
[28] The Tribunal accepts that the applicant's husband has since 2015, some investment in a school in India. There is a strong possibility that this investment has been financed by Mr. Singh's earnings in Australia. However the Tribunal makes no finding in this regard.
[29] The Tribunal takes into account the· economic circumstances and political conditions in the applicant's home country relative to the economic and political conditions in Australia and finds that the disparity between the two offers a further incentive for the applicant to seek to use the Student visa program to maintain ongoing residence in Australia.”
At [32] – [35] of its reasons, the Tribunal outlined the first applicant’s potential circumstances in Australia, and found as follows:
“[32] The Tribunal has regard to the applicant's potential circumstances in Australia. The applicant's economic circumstances in Australia appear to be well established and comfortable - the family is living in shared accommodation, thereby limiting their expenses, which, according to the applicant's GTE Statement, she "can easily afford" because of her and her husband's, continuous and well-paid employment.
[33] The applicants' son, Jasanot Singh, arrived in Australia as a three-year-old and has now spent 11 of his 14 years onshore. His entire schooling to date has been in Australia. He would quite naturally, have become acculturalised to living in Australia and no doubt now has an established network of friends through school and sporting and community activities. The same could be said of his parents, the applicant and other depended applicant, who would have established strong personal ties in Australia through their employment, with other parents from their son's school, amongst their neighbours and through their sporting or community activities.
[34]The Tribunal is of the view the applicant's family, social and economic circumstances in Australia, which have been established over a period in excess of 10 years, present as a significant incentive for the applicants to seek to maintain ongoing residence indefinitely.
[35] The Tribunal is not satisfied that the applicant is a genuine student seeking to progress academically and having a genuine intention to stay in Australian temporarily.
The Tribunal had regard to the first applicant’s statement regarding her study goals and intentions, her completion of a Bachelor of Business degree, and her enrolment thereafter in a Master of Business Administration. The Tribunal had regard to the following excerpts from the first applicant’s statement: [1]
•“Her "dream was to do [a] Bachelor's (degree] in India or abroad."
•the Bachelor of Business (Management) degree would be "more than enough" for her educational and career goals;
•the bachelor degree was to be "the final education for me in Australia";
•her hope was to complete her education in Australia soon by July 2018.”
[1] Court Book (CB) pp 54 – 59.
Though the first applicant had stated that her Bachelor degree was to be her final degree in Australia, at [39] of its reasons the Tribunal noted that within weeks of obtaining her Bachelor of Business degree, the first applicant had enrolled in a Master of Business Administration (MBA) which was scheduled to run from 25 June 2016 until 12 June 2020. The Tribunal found, as it was entitled to, that her earlier statement was “self-serving and lacking in credibility”.
When assessing the value of the first applicant’s proposed course of study to her, the Tribunal at [41] – [42] said as follows:
“[41]Having finally completed her "dream" business degree, the Tribunal is not persuaded that the enrolment in an MBA immediately thereafter and at a significant cost of $50,000, is justified or can reasonably be said to add value to the applicant's future. Since the applicant's evidence is that her career intention is to establish her own import/export business based upon the working experience that both she and her husband have enjoyed in Australia, she has not provided satisfactory arguments or evidence that studying towards an MBA would add distinct value on top of her bachelor degree and work experience in Australia.”
At [43] of its reasons, when finding that the first applicant was not a genuine applicant for entry and temporary stay as student in Australia, the Tribunal found as follows:
“[43]The Tribunal has considered the applicant's immigration history and notes that she applied for a Temporary Work (UC 457) on two occasions and was refused the first time on 28 January 2014. Whilst applicants are free to pursue other visa options for permanent residency, the Tribunal finds that the applicant's slow rate of academic progress, the lack of value of her current enrolment to her future, the lengthy period exceeding ten years that the applicants have remained onshore, when viewed alongside their previous pursuit of other visa options, cumulatively indicate that the applicant is not a genuine applicant for entry and stay as a student.”
Having regard to all of the evidence before it, the Tribunal at [47] of its reasons found that the applicant did not meet the relevant criteria for the grant of a Subclass 500 Student Visa.
Conclusions
The Court finds that the first applicant’s claims are without merit. The Tribunal was entitled to give little weight to the claim that the relative affluence of the applicants in India was a factor which ought to have been determinative in favour of the grant of a visa. It was noted by the Tribunal at [27] of its reasons that the affluence of the first applicant’s family, and the first applicant’s family ties, had not been sufficient to motivate the first applicant to either conclude her studies in Australia, or return home, except for a few holiday visits. The Tribunal did not err in making such finding. It was not illogical or irrational for the Tribunal to have so found.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
At [29] of its reasons, when considering the general economic circumstances in India, the Tribunal said as follows:
“[29]The Tribunal takes into account the· economic circumstances and political conditions in the applicant's home country relative to the economic and political conditions in Australia and finds that the disparity between the two offers a further incentive for the applicant to seek to use the Student visa program to maintain ongoing residence in Australia.”
On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles 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 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]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. 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 to allow a visa criterion to be met 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]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(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].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
The Tribunal was not required to set out in detail each and every matter which was the subject of its consideration prior to handing down its decision. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46] – [47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 14 September 2021
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