Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 40
•13 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 40
File number(s): MLG 3277 of 2018 Judgment of: JUDGE EGAN Date of judgment: 13 September 2021 Catchwords: MIGRATION – Application for second student visa – whether applicant had intention to remain in Australia only temporarily – factors to be taken into account – no jurisdictional error on the part of the Tribunal – application dismissed. Legislation: Migration Regulations 1994 (Cth), Sch 2, cl 500.212
Ministerial Direction No. 69
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Kaur v Minister for Home Affairs [2019] FCA 2026
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 30 August 2021 Date of hearing: 30 August 2021 Place: Brisbane Counsel for the Applicant: Mr J. Murphy Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr J. Barrington Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3277 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRLIA (DIVISION 2) BETWEEN: RAMANDEEP KAUR
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:
13 SEPTMBER 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 Amended Application for Review filed on 2 August 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7, 853.00.
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 applicant is a citizen of India who arrived in Australia on 15 January 2014 on a Student Visa. That visa expired on 15 March 2017.
On 13 March 2017, the applicant applied for a second Student (Temporary) (Class TU) (Subclass 500) Visa.
On 13 June 2017, a delegate of the Minister refused to grant the applicant the visa.
On 30 June 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 4 October 2018, the Tribunal affirmed the decision of the delegate.
On 31 October 2018, the applicant filed an Originating Application for Review of the Tribunal’s decision.
At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 2 August 2021.
Grounds of Review
The Grounds of Review, as set out in the Amended Application for Review were relevantly as follows:
“Grounds of application
1. In purporting to discharge the statutory task required by the Migration Act 1958 (Cth) (in particular, s 348 read with s 499(2A) and Direction 69 issued under s 499(1)) the Administrative Appeals Tribunal fell into jurisdictional error by failing to consider a substantial and clearly articulated claim (or consideration) raised by the Applicant, namely, that the genuineness of her application for entry and stay as a student was supported by her intention to return to India to open, manage and run a restaurant in her home town.
Particulars:
(i) In her letter addressing the criteria in cl 500.212 of Sched 2 the Migration Regulations 1994 (Cth), the Applicant explained that her visa application was to enable her to study a Diploma in Hospitality Management which, in turn, was to allow her to ‘[o]pen a restaurant in my home town’ and that, in this regard, ‘all family members have lots of expectations from me and this business’ (CB 135). The Applicant also explained that ‘My family have sufficient funds to help me to open my own business’ (CB 136).
(ii) The Applicant provided supporting documentation in relation to this claim, including: evidence of her parents’ incomes (CB 113–8); a commissioned ‘Cost Estimate’ of the price of building a restaurant in her parents’ names (CB 109–10); a planning approval of the proposed restaurant in her parents’ names, approved by the Punjab Government (CB 128); affidavits from her parents indicating their support for her study proposal (CB 20, 130).
(iii) The Tribunal did not advert to, either expressly or otherwise, this claim in the Tribunal hearing or the reasons for decision.
2. In purporting to discharge the statutory task required by the Migration Act 1958 (Cth) (in particular, s 348 read with s 499(2A) and Direction 69 issued under s 499(1)) the Administrative Appeals Tribunal fell into jurisdictional error in its consideration of the Applicant’s circumstances in her home country, in particular the factor in clause 9(a) of Direction 69, by failing to consider a relevant consideration; or misunderstanding this aspect of the statutory task as involving assessment of the Applicant’s previous, rather than current, study.
Particulars:
(i) Clauses 6 and 9 of Direction 69 required the Tribunal to have regard to the Applicant’s circumstances in her home country. Relevantly, clause 9(a) required the Tribunal to have regard to ‘whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there.’
(ii) In her letter addressing the criteria in cl 500.212 of Sched 2 of the Migration Regulations 1994 (Cth), the Applicant explained that her reasons for undertaking the Diploma of Hospitality Management in Australia, rather than India, were the ‘highly qualified trainers’, the ‘opportunity to gain knowledge of multi cuisine’ and the ‘international reputation’ of Australian study institutions (CB 135–6).
(iii) Instead of considering the Applicant’s claims above at (ii), the Tribunal considered whether the Applicant had reasonable reasons for not undertaking her previous course of study (that is, a bachelor of bioscience) in India (Tribunal reasons [14], [19] CB 158).
3. In purporting to discharge the statutory task required by the Migration Act 1958 (Cth) (in particular, s 348 read with s 499(2A) and Direction 69 issued under s 499(1)) the Administrative Appeals Tribunal fell into jurisdictional error by irrationally or illogically concluding that the Applicant’s ties to Australia were ‘strong and deep … [and] are almost bonds of obligation’.
Particulars
(i) Clauses 6 and 11 of Direction 69 required the Tribunal to have regard to the Applicant’s potential circumstances in Australia. Relevantly, clause 11(a) required the Tribunal to have regard to the Applicant’s ‘ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties’
(ii) The Applicant’s written material included an explanation that she had 11 family members and friends in India (CB 69). The Applicant also gave oral evidence at the Tribunal that she maintained contact with her school friends in India.
(iii) As against that, the Applicant gave oral evidence at the Tribunal that, in Australia, she lived with a male friend she had met in Australia, and his wife and children. The Applicant also gave oral evidence that she had friends in Australia and that she attended a Sikh temple once a week, but that she did not participate in any sporting clubs or community outreach.
(iv) The Tribunal found that the Applicant’s ties to Australia ‘are strong and deep … almost bonds of obligation’ (Tribunal reasons [24], CB 159).
(v) There was no logical or rational basis on which the Tribunal could find that the Applicant’s ties to Australia were ‘strong and deep’ and/or ‘almost bonds of obligation’.
4. In purporting to discharge the statutory task required by the Migration Act 1958 (Cth) (in particular, s 348 read with s 499(2A) and Direction 69 issued under s 499(1)) the Administrative Appeals Tribunal fell into jurisdictional error by failing to:
a. Engage in any balancing exercise about whether the Applicant satisfied the criteria in cl 500.212 of Sched 2 of the Migration Regulations 1994 (Cth); and/or
b. Reach any finding about whether the Applicant satisfied the criteria in cl 500.212 of Sched 2 of the Migration Regulations 1994 (Cth).
Particulars for 4(a):
(i) Section 348 of the Act and clause 2 of Direction 69 required the Tribunal to engage in a balancing exercise about whether the Applicant satisfied the criteria in cl 500.212 of Sched 2 of the Migration Regulations 1994 (Cth).
(ii) The Tribunal did not engage in any balancing exercise about whether the Applicant satisfied the criteria in cl 500.212 of Sched 2 of the Migration Regulations 1994 (Cth), instead considering each of clauses 9, 10, 11, 12, 13 and 14 of Direction 69 individually (see, in particular, Tribunal reasons [14], [20], [25], [29] CB 158–60).
Particulars for 4(b):
(i) Section 348 of the Act and clause 1 of Direction 69 required the Tribunal to reach a ‘finding’ about whether the Applicant satisfied the criteria in cl 500.212 of Sched 2 of the Migration Regulations 1994 (Cth).
(ii) The Tribunal did not reach any finding about whether the Applicant satisfied the criteria in cl 500.212 of Sched 2 of the Migration Regulations 1994 (Cth), instead considering each of clauses 9, 10, 11, 12, 13 and 14 of Direction 69 individually (see, in particular, Tribunal reasons [14], [20], [25], [29] CB 158–60).”
As to Ground 1 of the Amended Application for Review, it was asserted that the Tribunal had failed to consider a substantial and clearly articulated claim, namely the genuineness of the applicant’s intention to remain in Australia only temporarily for the purpose of her gaining qualifications to assist her in the opening, managing and running of a restaurant upon her return to India. The Tribunal intellectually engaged on the applicant’s articulated claims, as it was required to do, when considering cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 500.212 of Schedule 2 to 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.”
The Tribunal was cognisant of the applicant’s articulated claim, specifically referring to it at dot point 5 in [11] of its reasons as follows:
· “You have acquired skills in cooking and kitchen management. You wish to open a restaurant in your home town. You have outlined the reasons for studying at ASU and in Melbourne, and in Australia.”
At [12] of its reasons, the Tribunal appropriately made findings relating to the applicant’s relevant past visa history, and her relationship with study in Australia, saying as follows:
“[12] The tribunal finds the applicant came to Australia to study at bachelor in the higher education sector. Conditions were attached to her TU 573 visa. She enrolled in a series of bachelor level courses. These enrolments were cancelled by the education provider. The applicant has not enrolled in an approved course in the higher education sector from August ’14 until March 2017. She sought advice from a university counsellor, received that advice, did not follow that advice, consulted further with friends and a migration agent, enrolled in a vocational level course in direct contravention of conditions attached to her student visa, then applied to enrol in a series of commercial cookery and hospitality management courses, applied for a student visa, such application was rejected because the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia, has completed two courses in commercial cookery and seeks to remain in Australia to study a Diploma in Hospitality Management, when she already holds very similar qualifications in management.”
At [27] – [30] inclusive of its reasons, the Tribunal carefully outlined its decision making path after having considered all of the evidence before it. The Tribunal said as follows:
“[27] The tribunal is of the view that the applicant is now a well-qualified, well-trained, experienced person with a vocation that enables her to gain employment in Australia, and would enable her to gain employment in India. She has, in recent years, completed her studies in hospitality management, and prior to those hospitality management studies in commercial cookery, had completed a Diploma in Management. As earlier stated, the applicant is a skilled worker, has practical experience in the restaurant trade in Australia, and has been exposed to management techniques and management concepts as part of her formal education in Australia. There is no doubt in the tribunal's mind that the applicant would gain employment in India on the same basis that she has gained employment in Australia.
[28] The tribunal is of the view that the course of study proposed for the next six months is in substance very close to a Diploma of Management that the applicant acquired in 2015. The tribunal acknowledges that there is some specificity about sectoral study in hospitality management, but the tribunal is satisfied, from the various explanations and documents provided by the applicant, that she has been well-exposed to traditional management concepts and is quite capable of applying those concepts in the future in employment in India. In those circumstances, the tribunal is of the view that there is only marginal gain to be made from the acquisition of a Diploma in Hospitality Management when the applicant has already had experience and gained a similar qualification some years ago, at diploma level in management.
[29] The tribunal now turns to clause 13 and 14, the applicant’s immigration history. The applicant advised that she had previously applied for a student visa to Canada back in 2013, and she provided a more than reasonable explanation as to why that student visa was rejected, and the tribunal makes no adverse findings against the applicant on that point. She advised she had travelled home only once since 2014, and that she had not travelled to other countries, and visas for other countries had not been rejected. The tribunal finds that the applicant has spent almost five years in Australia, that the first three to four years of her time spent in Australia she enrolled in a set of bachelor level courses, and for a range of reasons, as have been outlined, was unable to complete her study in those courses. Since that time she has enrolled and completed a set of short, inexpensive, qualification. She has enrolled in and completed a set of short, inexpensive courses.
[30] In the period 2014 until 2017, the period of her initial TU 573 visa, the applicant spent most of that time in Australia without successfully gaining a qualification. The tribunal acknowledges that the applicant has gained qualifications in commercial cookery and management since that time. The tribunal is of the view that the decision of the delegate should be affirmed. The tribunal accordingly determines that the decision of the delegate is affirmed.”
It is clear that the Tribunal did intellectually engage on the very questions required to be considered by it for the purpose of fulfilling its statutory duty of assessing whether a visa ought to be granted or not.
The Tribunal was not required to refer to each and every piece of evidence before it when handing down its reasons. The Tribunal appropriately addressed the core issues raised in the applicant’s claims. It did not err in the way in which it considered the applicant’s claims as a whole. Its decision ought not to be scrutinised with an eye too keenly attuned to error. As 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.”
There is no merit to such claim.
As to Ground 2 of the Amended Application for Review, it was asserted that the Tribunal fell into error by failing to consider the applicant’s circumstances in her home country. Reference was made to clauses 6 and 9 of Ministerial Direction No. 69. Those clauses relevantly provided as follows:
The applicant’s circumstances
6. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
…
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. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b. the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d. military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e. political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.”
First, it was made clear at the commencement of the Ministerial Direction 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.”
Second, 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]).”
It was held by Justice Steward in Kaur v Minister for Home Affairs [2019] FCA 2026 at [25] that the factors which required mandatory consideration were those as set out in cl. 500.212 of Schedule 2 to the Regulations, namely:
“(a) the applicant’s circumstances; and
(b) the applicant’s immigration history; and
(c) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(d) any other relevant matter.”
At [29] – [31] of Kaur, it was further said by Steward J as follows:
[29] I respectfully disagree with Mr Aleksov’s submission. In my view, He is distinguishable because the language and context considered in that case is different from that used in Direction No. 69. What the Tribunal must ultimately do in a case concerning an application of cl 500.212(a) is make a finding of fact about whether an applicant does or does not intend genuinely to stay in Australia temporarily. For that purpose, it must apply the four factors prescribed in cl 500.212(a) of the Regulations (set out above).
[30] Then, for the purpose of applying those factors, the Minister has made a Direction which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a “guide” in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a “checklist”; rather they are to guide a decision-maker “when considering the applicant’s circumstances as a whole”. In other words, a decision-maker is not required to check each identified factor in the Direction. In my view, this language is inconsistent with the first appellant’s contention that every factor must be considered as a mandatory consideration. It is also inconsistent with the function and purpose of Direction No. 69 as a guide to assist in applying cl 500.212.
[31] In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v. Minister for Home Affairs [2019] FCAFC 135; SZSSC v. Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at 172-176 [75]- [81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v. Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v. Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ.”
The matters set out in clauses 6 and 9 of the Ministerial Direction were not mandatory considerations required to be taken into account by the Tribunal. The applicant’s submission that the Tribunal failed to address each and every of the applicant’s claims at [14] – [19] inclusive of its reasons belies the fact that the Tribunal, at [14] – [28] inclusive of its reasons, comprehensively dealt with all cl. 500.212 factors, as well as those clearly articulated claims based upon the Ministerial Direction. The Tribunal’s task was to determine whether the applicant had a genuine intention to remain in Australia only temporarily. The Tribunal was not required to canvas each and every aspect of the applicant’s claims in its reasons for decision. Again, the applicant has sought to find fault in the Tribunal with eyes too keenly attuned to error. There is no merit to Ground 2 of the Amended Application for Review.
As to Ground 3 of the Amended Application, it was asserted that the finding of the Tribunal that the applicant’s ties to Australia were “strong and deep” was illogical or irrational. There is no merit to such claim.
At [20] – [24] inclusive of its reasons, the Tribunal canvassed the evidence of the applicant about her life in Australia. When finding that the applicant’s ties were strong and deep and in the nature of almost bonds of obligation and friendship, the Tribunal was doing no more than putting into context what was a reasonable view of how closely the applicant had not only bonded with the family with which she lived – she considered the male head of the family as she would a brother – but also with friends, workmates and fellow attendees of the Sikh temple frequented by her. By the time of the hearing before the Tribunal, the applicant had lived in Australia for a period of four (4) years and nine (9) months. The Tribunal was entitled to take that period of time into account when arriving at its decision. It also had the benefit of having observed the applicant during the course of the hearing before it. The Tribunal relevantly said as follows:
“[20]The tribunal now turns to clause 11 of Ministerial Direction 69, the applicant’s potential circumstances in Australia. The applicant advised that she lived with a family in Australia, the family consisting of a husband, his wife, and their two children. That family is a Sikh family, and she considers the father of the family to be so close to her that she regards him as her brother. She advised that she is not in any relationship in Australia. She advised that she attends Sikh temple regularly. She attends temple for prayer and for peace of mind. She helps out in temple. She helps out at community eating times. She carries out services at temple in terms of cleaning and the baking of bread.
[21]She spends her spare time shopping, and her main form of entertainment, or main form of social engagement, is spending time with friends at their houses, or her friends come to her house and they engage in social activities on that basis. She advised her normal income was somewhere in the area of $AU22,000 to $AU25,000 per year, depending on the number of hours, of course, that she worked as a housekeeper and team leader. Of interest to the tribunal was that the applicant is in the process of gaining considerable experience as a chef. She has completed vocational skills training as part of her commercial Cookery III and Commercial Cookery IV courses, and she graduated from those, and she is currently working two or three days a week in a restaurant, an Indian restaurant close to her home, where she is an assistant to the head chef, and she advised that she was receiving training, practical experience, and developing her skills, and she advised satisfaction with the working arrangements in the restaurant.
[22]The tribunal is of the view that the applicant has, after a difficult start in a foreign country, involving multiple enrolments in multiple courses, in multiple colleges, over a period of time established a satisfying and well-ordered life for herself in Australia. That satisfying and well-ordered life has involved the acquisition of skills through the enrolment and completion of vocational level training as a commercial cook. It has involved the acquisition of understanding of theoretical concepts at a management level, because the applicant advised the tribunal that she had completed and graduated with a Diploma of Management in 2015, and whilst the applicant was unable to provide a certificate of graduation, the tribunal is satisfied that the applicant attended college, completed her studies, graduated the Diploma of Management, and the tribunal so finds.
[23]As a consequence of this, the tribunal is of the view that the applicant has acquired vocational skills as a chef. She has acquired practical training as a chef as part of her education. She has acquired considerable skills through working in a restaurant, and she has been exposed to fundamental and theoretical concepts relating to the management of a restaurant or a hospitality type enterprise. The applicant clearly has close relationships with her friends with whom she lives. The applicant advised that she has girlfriends and boyfriends in Australia and spends time and socialises with them, and of course the tribunal regards that living arrangement, those social arrangements, those working arrangements, those study arrangements, as entirely normal and entirely proper, and entirely appropriate for a young woman who has now settled down in Australia and pursued study.
[24]However, the tribunal is of the view that those ties are strong and deep. They are almost bonds of obligation and friendship, and the tribunal is of the view that the applicant’s ties with Australia present as a strong incentive to remain in Australia. The tribunal is of the view that the application for a student visa is being processed to maintain ongoing residence in Australia.”
Further, the decision of the Tribunal could not be said to be either clearly unjust, arbitrary, capricious or unreasonable. The Tribunal’s decision was one, at the least, about which reasonable minds might differ. The same decision could have reasonably been arrived at by another reasonable and logical decision maker. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] 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.”
It was open for the Tribunal to make the findings it did.
As to Ground 4 of the Amended Application for Review, it was claimed that the Tribunal had failed to engage in a “balancing exercise” between the statutory criteria as provided for by cl. 500.212 of Schedule 2 and the relevant paragraphs of the Ministerial Direction. There is no merit to such claim.
The Tribunal was not obliged, by statute or otherwise, to undertake a balancing exercise. What the Tribunal did was to intellectually engage with the applicant’s claims made to it, consider such claims in the context of all of the evidence before it, then make a decision in the exercise of its statutory powers. The approach of the Tribunal could not be said to have been unorthodox or inconsistent with the evidence before it. Again, the Tribunal was not required to set out, in its reasons, each and every analytical step taken by it before it arrived at its decision, or every piece of evidence to which it had greater regard over and above other evidence. The fact that the Tribunal did not refer to all such matters in its decision was of no moment. The Tribunal appropriately addressed those matters required to be addressed by it for the purpose of deciding whether or not, on balance, the applicant had a genuine intention to remain in Australia only temporarily.
At [18] – [19] of its reasons, when addressing issues relating to circumstances in her home country relative to her circumstances in Australia, the Tribunal said as follows:
[18] The tribunal is of the view that the applicant’s ties to her home country are very limited. She has lived in Australia for the last five or six years, and most of that time she has lived in Australia as an adult woman. She has not returned to India, and whilst she maintains love and respect for her family, and whilst she maintains a form of communication with former girlfriends from high school, those ties are not out of the ordinary and they are, in the tribunal’s view, the normal ties that a young, single adult woman would have living in a foreign country, ties of love and respect for family, ties of friendship to former school friends, but no more significant than that.
[19]The tribunal is of the view that the applicant has not established that her personal ties to India would serve, or do serve, as a significant incentive to return to her home country. The tribunal is also satisfied that the applicant has not established reasonable reasons for undertaking to study in her home country. The applicant advised the tribunal she did not have any military service commitments, was not aware of civil or political unrest in her home country, and that the economic circumstances of her family in India were better than most other persons in the home country.
In the circumstances, it ought to be inferred, from a reading of its reasons for decision, that the Tribunal carefully weighed up all of the evidence before it prior to reaching its decision. That process inherently involved a balancing exercise which, as earlier found, was not required to be the subject of detailed expression.
There is no merit to Ground 4 of the Amended Application for Review.
The decision of the Tribunal could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. 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. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The 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-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 13 September 2021
0
13
2