Khan v Minister for Immigration & Another
[2019] FCCA 565
•13 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 565 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – refusal of student visa – whether Tribunal failed to weigh Applicant’s circumstances as a whole – whether legal unreasonableness. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), cl.572.223 in Schedule 2 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 |
| Applicant: | AFROZE MOHAMMED KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1136 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 5 February 2018 |
| Date of Last Submission: | 13 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2019 |
REPRESENTATION
| Solicitors for the Applicant: | M S Nair & Co |
| Counsel for the Respondents: | Mr Swan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1136 of 2016
| AFROZE MOHAMMED KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 April 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Subclass 572) visa.
The Applicant, a citizen of India, applied for the visa in question on 10 June 2015. At the time of the application, he relied on enrolments in an Advanced Diploma of Network Security and an Advanced Diploma of Accounting. It appears that the first of these was a course he was undertaking and that the second was to start on 20 July 2015.
One of the applicable criteria for a Subclass 572 visa was in cl.572.223 in Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which, at the time in question, relevantly provided:
(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; …
On 30 July 2015 the delegate refused to grant Mr Khan a Student visa. The delegate was not satisfied that he was a genuine applicant for entry and stay as a student, not being satisfied that he genuinely intended a temporary stay in Australia.
Mr Khan sought review by the Tribunal. He was invited to a Tribunal hearing. The hearing invitation of 12 January 2016 identified the issue before the Tribunal as whether the Applicant genuinely intended to stay in Australia temporarily as required by cl.572.223(1)(a) of the Regulations. The Applicant was asked to provide a written statement addressing the issue of whether he was a genuine temporary entrant by reference to Direction No. 53, made under s.499 of the Migration Act 1958 (Cth) (the Act). The Tribunal rescheduled the hearing. The amended hearing invitation of 22 March 2016 repeated the information as to the relevant issue and the reference to Direction No. 53.
On 24 March 2016, Mr Khan provided the Tribunal with a written statement which is referred to further below. He attended a Tribunal hearing on 18 April 2016. A transcript of the Tribunal hearing is before the court as an annexure to the affidavit of the Applicant sworn on 17 January 2018. The Applicant also provided the Tribunal with supporting documents, including a screenshot from ‘Australian Immigration Daily News’ referring to the decision of the High Court in Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 and copies of Khanna v Minister for Immigration & Anor [2015] FCCA 1971; (2015) 298 FLR 388 and Jung v Minister for Immigration & Anor [2016] FCCA 1096, which were also referred to in his statement.
Tribunal Decision
In its reasons for decision of 18 April 2016, the Tribunal described some of the issues referred to in the delegate’s decision and referred to the information before it, including the “detailed” submission provided by Mr Khan prior to the hearing, which it summarised.
The Tribunal observed that at the hearing, when asked about the points raised in his written submission, Mr Khan had provided evidence that sometimes conflicted with his written submission in relation to whether he had close relations and ties in Australia and whether he had obtained employment in Australia, both of which were relevant to whether he had a lack of significant ties in Australia.
The Tribunal also had regard to other concerns it had raised with Mr Khan at the hearing, including in relation to the “array” of different courses he had studied; the fact that he had not progressed beyond the VET(572) study level and that his current enrolment was not above the 572 level; and that it was difficult to accept the length of time he had spent in Australia was “temporary”. It addressed the fact that during the hearing Mr Khan and his agent had both disputed evidence referred to by the delegate in relation to the PRISMS record and had noted that he had subsequently completed most courses, even if they were initially cancelled. The Tribunal observed while Mr Khan may have subsequently completed courses, the difficulty raised by the delegate was in relation to repeated enrolments that had not been completed on the first attempt.
The Tribunal recorded that it had put to Mr Khan that although his father (in India) may have been ill for several years, this did not adequately explain why he continued to stay in Australia and enrol in further courses, rather than returning to India full time. It referred to Mr Khan’s evidence that he had been misguided by agents and had enrolled in unrelated courses because he thought they would be easier and that his father had encouraged him to return to Australia to complete his education. The Tribunal also recorded that when asked about his enrolments relating to the current student visa application (including the completed Advanced Diploma of Network Security and the Advanced Diploma of Accounting), Mr Khan had said that the latter course would allow him to obtain employment in India and that when asked why the former course would not be sufficient, had said that he had asked about employment on his last trip to India and was told to finish his accounting.
The Tribunal concluded that, for the reasons it gave, the decision under review should be affirmed. It found, having regard to the Applicant’s current proposed course of study, that the relevant subclass of Student visa was Subclass 572 and that the issue was whether the Applicant met the time of decision criterion in cl.572.223, in particular cl.572.223(1)(a).
The Tribunal acknowledged that it must have regard to Direction No. 53 which required it to have regard to a number of specified factors in relation to various matters in assessing the genuine temporary entry criterion for student visa applications. It also recorded that the direction indicated that the factors therein specified should not be used as a checklist, but were intended to guide decision-makers to weigh up an applicant’s circumstances as a whole in reaching a finding about whether the Applicant satisfied the genuine temporary entrant criterion.
The Tribunal continued at paragraphs 18-19:
In relation to the applicant’s circumstances, the Tribunal notes that the applicant has extended family and a spouse residing in India and this may indicate a strong incentive to return. However during the hearing the applicant gave evidence that his spouse has been prevented from entering Australia because his Student Visa was not granted, and that he plans on his spouse joining him if the current Student Visa is granted. The applicant also gave evidence that he has a brother/cousin who is a Permanent Resident in Australia. These factors indicate that the applicant does have strong family ties, or the potential for strong family ties, in Australia.
In relation to his employment, the applicant gave evidence that he has been employed, either on a part-time or casual basis, for the majority of the time he has spent in Australia. This again indicates that the applicant has strong ties, or the potential for strong ties in Australia.
The Tribunal addressed Mr Khan’s immigration history since he entered Australia in December 2008 as the holder of a Student visa. It observed that since that time, he had held a Student visa or related Bridging visa and that, as it had raised during the hearing, it was “difficult to consider [his] stay temporary in his current circumstances”, as his enrolment in the current course did not expire until July 2017. If he continued as planned, this would result in Mr Khan spending more than eight years in Australia on a “temporary” visa. The Tribunal also had regard to the fact that he had not progressed above the 572 study level, that is, that he was not enrolled at tertiary or higher education level, and that he had given no indication that he intended to do so. The Tribunal found that these factors combined indicated that the Applicant may be using the student visa system to maintain residence in Australia.
In relation to the potential value of the course to the Applicant’s future, the Tribunal observed that Mr Khan had already completed several courses at the 572 level, including the Advanced Diploma of Network Security he completed in July 2015, and continued:
In these circumstances it is difficult to accept that further study at the same level will provide a proportional increase in the Applicant’s employment prospects.
The Tribunal concluded that on the basis of these matters and having considered the Applicant’s circumstances, immigration history and other matters it considered relevant, it was not satisfied that he intended genuinely to stay in Australia temporarily. Accordingly, it found that he did not meet cl.572.223(1)(a) in Schedule 2 to the Regulations.
The Tribunal observed that the essential requirement of cl.572.223 was also reflected in the criteria for other subclasses within the student visa class (except Subclass 580). It found the Applicant did not meet the requirements of those other subclasses. There was no material before the Tribunal to suggest that the Applicant met the prescribed criteria for the Subclass 580 (Student Guardian) visa.
The Tribunal affirmed the decision not to grant Mr Khan a Student (Temporary) (Class TU) visa.
The Proceedings
Mr Khan sought review by application filed in this court on 9 May 2016. He now relies on an amended application filed on 19 January 2018.
There are two grounds in the amended application. Both grounds rely on the same particulars. They are as follows:
Ground 1
The Tribunal has committed jurisdictional error by failing “to weigh up the applicant’s circumstances as a whole” in terms of Direction 1 of Direction 53.
Particulars
a. On the facts before the Tribunal, it failed to “assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by: a. considering the applicant against all factors specified in this Direction, and b. taking into account any other relevant information provided by the applicant…” (Direction 2).
b. The Tribunal failed to have regard to the applicant’s circumstances in his home country. (Direction 6)
c. The Tribunal did not allow any reasonable motives as established by the applicant. (Direction9 a) (sic). The use of the word “should” in this Direction is particularly significant
d. The Tribunal did not give due weight to the applicant’s personal ties in his home country (Direction 9 b).
e. Direction 16 reads:
“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.”
f. At [18] the Tribunal’s reasoning (sic), it is submitted with respect, is flawed. The reasoning flows in this manner:
i. “(T)he applicant has extended family and a spouse in India and this may indicate a strong incentive to return.”
ii. “However, during the hearing the applicant gave evidence that his spouse has been prevented from entering Australia because his Student Visa was not granted, and that he plans on his spouse joining him if the current Student Via (sic) is granted” In the circumstances and in terms of the guidance provided in Direction 53, it would not be unusual for a wife to join her husband here in the circumstances indicated by the applicant. That flaw in the reasoning is compounded when the “brother/cousin” relative resident here receives a much higher recognition than a wife.
iii. “The applicant also gave evidence that he has a brother/cousin who is a Permanent Resident in Australia.”
iv. “These factors indicate that the applicant does have strong family ties or the potential for strong family ties, in Australia.” The Tribunal is not acting on facts before it. It has ventured beyond the factual realm.
v. The “potential for strong family ties” is nowhere to be found in Direction 53 and certainly not in the context of the reasoning as stated above
Ground 2
The Tribunal in affirming the decision of the delegate, has made, in legal sense, an unreasonable decision.
Particulars
a. The Applicant repeats the particulars for Ground 1.
(errors and emphasis in original)
Direction No. 53
Both grounds concern the Tribunal’s consideration of Direction No. 53 issued by the Minister for Immigration under s.499 of the Act on 3 November 2011.
Section 499(1) of the Act provides:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
However, s.499(2) states that s.499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”.
Under s.499(2A) a person or body “must comply” with a direction under s.499(1) of the Act.
The preamble to Direction No. 53 (referred to by Mr Khan in his submissions) includes the statement that an applicant for a student visa must be both a genuine temporary entrant and a genuine student and states that:
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to enter and remain in Australia temporarily, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period or permanently.
The preamble also summarises the effect of the criterion in cl.572.223(1)(a) set out at [3] above and explains that the direction provides “guidance” to decision makers on the factors that should be considered in “weighing up” the matters referred to in cl.572.223(1) (and equivalent criteria for other subclass of student visa) to determine whether an applicant genuinely intends to stay in Australia temporarily and that it is binding on decision-makers.
The Applicant referred to directions 1, 2, 6, 9 and 16 in Direction No. 53 which are as follows:
1. Decision makers should not use the factors specified in this Direction as a checklist. Rather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the Applicant satisfies the genuine temporary entrant criterion.
2. Decision makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b. taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).
…
6. Decision makers must have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia
…
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 of the applicant’s circumstances relative to the home country and to Australia.
d. Military service commitments that would present as a significant incentive for the applicant not to return to their home country.
e. Political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student Visa as 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.
…
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.
Directions 11 and 12 are also of relevance to the grounds relied on by the Applicant. They provide:
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 maintain ongoing residence.
d. Whether the primary and secondary 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 the 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.
12. Decision makers must have regard to the following factors in considering the value of the course to the applicant’s future:
a. Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.
b. Relevance of the course to the student’s past or proposed future of employment either in their home country or a third country.
c. Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
Ground 1 is expressed as a general concern that the Tribunal failed to “weigh up the applicant’s circumstances as a whole” in terms of direction 1 of Direction No. 53. In support of this proposition and the contention of legal unreasonableness in ground 2, the particulars refer to six matters. Insofar as the Applicant’s submissions went beyond the particularised matters, these issues were addressed by the First Respondent and have been considered.
In written submissions the Applicant appeared to take issue with the Tribunal’s approach to the delegate’s findings by criticising the reasoning of the delegate. Under the heading “our reasoning” the submissions raised several points of disagreement with the delegate’s reasons. It was contended that the errors by the delegate vitiated the Tribunal’s decision and also that the Tribunal should have corrected the asserted errors by the delegate.
However the Tribunal was not under an obligation to “correct” asserted errors by the delegate. Even if the delegate’s decision was in some way invalidated, that would not have “vitiated” the decision of the Tribunal as the Applicant contended (cf Zubair v Minister for Immigration and Citizenship [2013] FCA 422). The Tribunal was not under an obligation to identify error and remit the matter to the delegate for reconsideration. It was not conducting an appeal from the delegate, but rather a de novo merits review which would cure any error, if there was one in the delegate’s decision.
Moreover the Court has no jurisdiction to review the delegate’s decision in this instance (see ss.476(2)(a) and 476(4) of the Act). The concerns raised by the Applicant in relation to the delegate’s reasoning do not establish jurisdictional error on the part of the Tribunal.
Insofar as this concern related to the manner in which the delegate’s decision was referred to in the Tribunal’s reasons, the Tribunal summarised matters noted by the delegate in refusing to grant the visa on the basis that the Applicant did not satisfy the genuine temporary entrant criterion. As the First Respondent pointed out, the Tribunal’s reasons for affirming the decision of the delegate were (as it stated in paragraph 13) set out at paragraphs 14 - 23. Nothing in this part of its reasons (or indeed anywhere else in the decision record) establishes that the Tribunal adopted or incorporated the delegate’s reasons or findings as its own.
Contrary to the Applicant’s contention, the fact that the Tribunal summarised the delegate’s findings and in that summary referred to the delegate’s views (including the view that the Applicant’s conduct in obtaining a certificate of Confirmation of Enrolment (“CoE”) for a course on the same date he applied for a Student visa indicated that he had recommenced study for the purposes of securing a Student visa rather than for reasons of “genuine interest” in a particular course), does not establish that the Tribunal strayed from the guidance provided in Direction No. 53 or failed to weigh up the Applicant’s circumstances as a whole. It did not refer to this factor in its findings. What was of concern to the Tribunal in this respect was the level of proposed study and the Applicant’s past study history, not the date on which the CoE was issued.
Insofar as the particulars to the grounds of review appear to assert that it was essential that the Tribunal refer expressly to each of the directions in Direction No. 53 that is not the case. The Tribunal was not required to specifically mention every factor in Direction No. 53 as relevant to or determinative of its conclusion. Rather it was to take into account the import of that direction as a whole in considering the relevant facts and circumstances that bore upon the issues raised by the direction (see Singh v Minister for Immigration and Border Protection [2016] FCA 74 at [28] and Suthar v Minister for Immigration and Border Protection [2016] FCCA 2844 at [19]). As stated in direction 1, the factors listed are “not to be used as a checklist”. It is apparent from the Tribunal’s reasons that it understood the relevance of Direction No. 53 and the fact that it was to be considered in assessing whether the Applicant satisfied the criterion in cl.572.223(1)(a) in Schedule 2 of the Regulations. In that context the Tribunal’s obligation was to have regard to relevant factors and to weigh up the Applicant’s circumstances as a whole.
The Applicant also submitted that it was necessary for the Tribunal to refer expressly to each of the matters addressed in his pre-hearing written submission to the Tribunal as “other relevant information provided by the applicant” as referred to in direction 2 of Direction No. 53. In written submissions the Applicant contended that the Tribunal had failed to give proper consideration to his written submission to the Tribunal.
Issue was taken with the fact that the Tribunal had summarised the Applicant’s pre-hearing submission. However, Direction No. 53 did not require the Tribunal to set out and specifically refer to every aspect of the Applicant’s detailed submission. The Tribunal’s obligation was to have regard to other “relevant information” provided by the Applicant (direction 2 and direction 16) in weighing his circumstances and the matters referred to in cl.572.223(1). As indicated, this did not extend to an obligation to address the Applicant’s concerns about the delegate’s decision. The Tribunal’s obligation was to conduct the requisite de novo review.
The Applicant raised particular concerns about the Tribunal’s consideration of various aspects of the submission. Insofar as it was suggested that the Tribunal did not consider the claims that he had not established strong ties and had not “gotten a job” in Australia, the Tribunal expressly addressed inconsistencies between these written claims and the Applicant’s oral evidence, as discussed further below.
Specific issue was taken with the accuracy of the Tribunal’s summary of the part of the Applicant’s submission that included the statement “the applicant has matured since his time and wishes to complete his studies and return to India to care for his father”. However the Tribunal acknowledged the Applicant’s written claims about the implications of his father’s illness. In the submission he had claimed “I have matured considerably since then”, apparently referring to the fact that he had previously enrolled in irrelevant courses, had not completed courses and courses had been cancelled in the past, in part because of his father’s past illness, his own stress and his inability to focus on his past studies. In that context the Applicant had submitted to the Tribunal “… I really have to finish my studies here so I can go back home to find a job and properly care for my father”.
As described above the Tribunal referred to issues it had raised at the hearing about why the Applicant continued to stay in Australia and enrol in further courses. It recorded the Applicant’s evidence that he was misguided by agents, that he enrolled in unrelated courses because he thought it would be easier and that his father had encouraged him to return to Australia to complete his education.
Further, in considering the Applicant’s claims and evidence, the Tribunal noted that the Applicant had family residing in India and that this may indicate a strong incentive to return. It referred to his claims about his father’s illness and his stress. However it also had regard to the Applicant’s immigration history (which the Applicant had endeavoured to explain in his written submission).
Contrary to the Applicant’s contention, the Tribunal considered, insofar as necessary, matters raised in his written submission. The Tribunal summarised and had regard to the Applicant’s claimed reasons for choosing to study in Australia and why he chose to study accounting. It understood and recorded his claim that he “misplaced his trust” in an agent and studying irrelevant courses. It was nonetheless open to the Tribunal to also take into account the Applicant’s length of time in Australia and his level of study.
It has not been established that the Tribunal failed to have regard to “relevant information” in the Applicant’s submission, let alone that the Tribunal failed to have regard to cogent relevant evidence or an integer of his claims in a manner constituting jurisdictional error (cf Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 and also see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67). The Tribunal was aware of the Applicant’s submission and referred to it where relevant in light of the subsequent discussion at the Tribunal hearing. Moreover the Tribunal’s reasons reveal an active intellectual engagement with the Applicant’s claims about his circumstances. Insofar as the Applicant disagrees with the Tribunal’s failure to accept his claim to be a genuine temporary entrant to Australia, he seeks impermissible merits review.
The solicitor for the Applicant pointed out that the Applicant had taken issue with the accuracy of the PRISMS record in his written submission to the Tribunal. In that context, issue was taken with what was said to have been a failure by the delegate to comply with Direction No. 53 in assessing information about the Applicant that was in the PRISMS record.
The Applicant had claimed:
As I believed that my study and enrolment arrangements affected my visa application though of fault of my own doing, I did more research on my own to back my claims. I refer to the case of Wei v Minister for Immigration and Border Protection (2015) HCA 51 (17 December 2015), and the case concludes that if the department cancels a student visa on the basis of a review of PRISMS which shows that a student is not enrolled in a course, but the course provider has failed to correctly record on PRISMS that the student is in fact enrolled, then the cancellation can be challenged (on the analysis of Judges Gageler and Keane).
Likewise, if the Department cancels a student visa based on a review of PRISMS without bothering to confirm with the course provider that the information on PRISMS is in fact correct, the cancellation decision is likewise flawed and vulnerable (on the view of Judge Nettle). This is similar situation to my case as the case officer did not asked for the explanation or reasons as to why the COE were cancelled, in fact I have completed most of the courses in which I was enrolled.
(emphasis in original)
The Applicant submitted that the delegate had erred in following incorrect information in PRISMS and sought to draw an analogy with the High Court decision in Wei (which had been drawn to the Tribunal’s attention).
In Wei, Gageler and Keane JJ found jurisdictional error where the delegate’s satisfaction that a visa holder was in breach of a visa condition that he be enrolled in a registered course was reached on the basis of incorrect information from PRISMS where an education provider had breached its duty under the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) to upload onto PRISMS confirmation of the visa holder’s then current enrolment (see Wei at [23]-[34]). As their Honours stated in Wei at [34]:
Here, the delegate's satisfaction that the plaintiff was in breach of the visa condition that he be enrolled in a registered course was formed by a process of fact-finding which was tainted by Macquarie University's antecedent breach of its duty, under s 19 of the ESOS Act, to upload onto PRISMS confirmation of the plaintiff's then current enrolment. The delegate reached that satisfaction because the delegate found as a fact that the plaintiff was not enrolled in a registered course. The delegate found that fact on the basis of information contained in PRISMS. That finding was wrong because the information contained in PRISMS was wrong. The information contained in PRISMS was wrong because of Macquarie University's failure to perform its imperative statutory duty.
In the present case the Applicant submitted that the delegate should have asked the course provider for reasons why his certificates of enrolment were cancelled and that the delegate had relied on incorrect PRISMS information. It was submitted that the Tribunal ought to have corrected this “error” and remitted the matter to the delegate. No authority was cited in support of the proposition that this was the role of the Tribunal. Such proposition is contrary to Zubair as discussed at [31] above.
It was also submitted that this “error” vitiated the decision of the Tribunal and that because of the failure of the Tribunal, the court was “empowered to look at that aspect of the Tribunal’s decision that the Tribunal failed to consider”.
The Applicant suggested that this was an example of the Tribunal failing to weigh up his circumstances as a whole, because it had failed to consider this aspect of the assessment process. It was pointed out that the Applicant had suggested to the Tribunal that the information contained in PRISMS was not correct, because he had eventually completed some courses in which earlier enrolments had been cancelled.
However, in contrast to the position in Wei, there is no evidence in this case that the PRISMS record was incorrect. Insofar as the argument is that although the Applicant’s enrolment in courses had been cancelled, he had ultimately completed most of the courses in which he had been enrolled, the Tribunal recognised (at paragraph 10 of its reasons for decision) that during the hearing both the Applicant and his agent had disputed the PRISMS record on this basis and had noted that the Applicant had subsequently completed most courses, even if they were initially cancelled. If the Applicant intended to allege that PRISMS was incorrect because it recorded that his enrolment in an Advanced Diploma in Network Security had been cancelled, when in fact he had completed the course, the PRISMS record before the Tribunal showed that the Applicant completed that course after earlier enrolments were cancelled. Similarly, in relation to a Diploma of Tourism course, the PRISMS record showed cancelled enrolments, but also recorded the Applicant’s completion of that course, consistent with what the Tribunal stated in its reasons for decision.
The Tribunal observed that, as it had raised with the Applicant at the hearing, while he may have subsequently completed courses, the difficulty was the fact of repeated enrolments in courses that had not been completed on the first attempt. In other words, the Tribunal was aware of and addressed the issue raised about the PRISMS record. It had regard to that concern as well as to other aspects of the Applicant’s immigration history. In this way it addressed the substance of this submission.
Insofar as the Applicant also relied on the decision of the High Court in Wei in these proceedings, as the First Respondent submitted, the circumstances in Wei are distinguishable from those of the present case. Wei concerned a visa cancellation under s.116 of the Act in circumstances where a University had failed to upload a current certificate of enrolment onto the PRISMS record. As a consequence, PRISMS contained incorrect information about the visa holder, which was then relied on to cancel the visa. However, as indicated, the PRISMS record before the Tribunal in this case has not been shown to contain incorrect information about the Applicant’s enrolment and the Tribunal addressed the issue raised in that respect.
The contention that the Tribunal erred in failing to consider the PRISMS aspect of the assessment process and that there was a shortcoming in its consideration of the facts in that respect is not made out, either as a basis for ground 1 or 2 or as some other basis for establishing jurisdictional error on the part of the Tribunal.
It was not indicative of jurisdictional error for the Tribunal to fail to refer to the decision of the High Court in Wei. This was not information that was relevant to the Applicant’s circumstances.
The Applicant also took issue with the fact that the Tribunal did not refer to other case law referred to in his submissions.
The Applicant had suggested in his submission to the Tribunal of 10 June 2015 that Jung had a strong similarity to his case and that the decision in Khanna demonstrated that there was nothing wrong with a Student visa applicant having a subjective desire to stay in Australia on a more permanent basis if a visa pathway became available.
In Jung and Khanna judges of this court had found jurisdictional error in Tribunal decisions, although I note that prior to the time of the Applicant’s submission and the Tribunal decision, Khanna was reversed on appeal (see Minister for Immigration and Border Protection v Khanna [2016] FCA 142).
The Tribunal recorded that the Applicant’s submission referred to case law. Its failure to refer in its reasons to the decision of Khanna at first instance is not indicative of jurisdictional error. The Tribunal considered the relevant facts. It recorded that the Applicant’s stated intention was to return home after completing his studies. It considered his circumstances as required under cl.572.223(1)(a)(i) in Schedule 2 to the Regulations. It expressly stated that it was not concerned about the Applicant considering a possible pathway to remain in Australia (in studying tourism) which reflected one of the issues considered in Khanna.
In Jung Judge Brown found legal unreasonableness in relation to a Tribunal decision. However that case turned on the facts of the Tribunal decision in issue.
I am not satisfied that the Tribunal’s failure to refer expressly to cases which the Applicant considered were analogous to his case in itself gave rise to a jurisdictional error. The Tribunal noted that the Applicant’s written submission made reference to relevant case law. It considered the Applicant’s claims.
The solicitor for the Applicant also submitted that, as in those cases, the Tribunal’s decision in this instance was not based on the facts before it. This contention is discussed in relation to ground 2. In particular, insofar as Jung is relied on in support of the proposition that the Tribunal’s decision was legally unreasonable, this is considered below.
If the Applicant intended to contend that the Tribunal had failed to give “proper” consideration to his written submission to the Tribunal, this is not made out. The Tribunal referred to and summarised the written submission at paragraph 6 in its reasons for decision. It properly considered the Applicant’s evidence and submissions and engaged in an active intellectual process in that respect.
It has not been established that the Tribunal’s approach to the Applicant’s written submission demonstrated a failure to take into account relevant information provided by the Applicant such as to constitute a jurisdictional error.
In addition, the Applicant submitted that the Tribunal had failed to take into account his oral evidence at the Tribunal hearing. It was contended that the Applicant had told the Tribunal that during one of his trips to India the Applicant had approached his former employer, who advised him that he would provide employment to him if he completed his accounting studies in Australia.
The Applicant relied on a particular exchange at the Tribunal hearing which appears to be evidence given by Mr Khan in an attempt to establish the utility of undertaking the proposed Accounting course, following the Tribunal’s expression of doubt as to whether that course would be of future value to him. Immediately before the exchange referred to by the Applicant, the Tribunal had stated (transcript, p.9):
Tribunal: Okay. Look, as I raised earlier, you’ve been here since 2008. This is a temporary student visa to enter Australia, and there comes a time that it’s difficult to consider it temporary once you’ve passed a certain time. Now, some people studying a certificate III, a certificate IV, diploma, advanced diploma, degree, masters, sometimes even a doctorate they might be here for 10 years studying, but there’s a very clear line where they’re progressing through their studies. So what I’m saying is the time that people have been here is only relevant in relation to their own personal circumstances.
Here your enrolment is still at the same level that you’ve been enrolling in the entire time you’ve been here, so it’s difficult to accept that weighed against the time you’ve already been in Australia, the course that you’ve done, the enrolments that you’ve had, both successful and unsuccessful, it’s hard to accept that this might actually benefit you further to stay in Australia even longer and study more. Would you like to respond to that?
Relevant to the manner in which his oral evidence was characterised in these proceedings, Mr Khan’s reply to the Tribunal was as follows (transcript p.9):
Applicant (through Interpreter): Yes. I finish accounting here, then I will return to my father to India and I will look for a permanent job over there.
The Applicant relied on the following exchange in transcript page 9, line 38 to page 10, line 41. The initial reference to “that stage” is a reference to the time at which Mr Khan had applied for the visa:
Tribunal: - - - but at that stage, you were still completing a Diploma of Network Security. Why can’t you go home and obtain employment using the education that you’ve already gained in Australia?
Applicant (through Interpreter): And I did go to India and I did look for some suitable job for me, and whatever courses are in demand over there and concentrating in those fields.
Tribunal: So why can’t you obtain employment using what you already had?
Applicant (through Interpreter): And wherever I go they said that “You’ve got only basic qualification and, moreover, you don’t have any experience related to that.” And the place where I was working in India I was doing… over there and I have a chance for doing an accounting job at the same place.
Tribunal: And you’re saying that when you were employed before 2008 and you’ve now been studying… in Australia, that that same employment person – or the same employer will consider employing you if you get accounting.
Applicant (through Interpreter): Even after having my visa refused, I went to see my father during December/January, and at that time I inquired with them and they said that currently there are less jobs for the country but there are more jobs for accounting.
Tribunal: The accounting I accept is in a different area but it’s actually the same level that you’ve already achieved which is Advanced Diploma, so you’re not – you’re getting a wider level of education but it’s not any higher than you already have, and you’ve already achieved Advanced Diploma in Australia. So when did you travel overseas most recently?
Applicant: 4 December.
Tribunal: December 2015?
Applicant: ‘15.
Tribunal: Until when?
Applicant: 3 January 2016.
Tribunal: Thank you. Okay. So you were already studying accounting at that stage?
Applicant (through Interpreter): Yes.
Tribunal: So why did you go see them about a job and then say, “You need to study accounting”, if you’re already studying accounting?
Applicant (through Interpreter): Yes. I told them that I was doing accounting and they said “Yes, we have accounting jobs but after you complete that, you can do that job”.
Tribunal: Look, I will take into account your evidence. At this stage, I have not made a decision. As I said, your written submission is quite good but there has been issues with that that I’ve raised with you. I’m going to ask your agent if he has any submissions that he would like to make and then I will come back to you…
The Applicant’s evidence to the Tribunal hearing does not rise as high as is now claimed. He did not claim to the Tribunal that his employer had said that he “would” provide him with employment if he completed his accounting studies in Australia, but rather that they had “accounting jobs but after you complete [accounting] you can do that job”. This did not amount to a clear claim to the Tribunal by the Applicant that his former employer would provide him with employment in accounting if he finished his accounting studies in Australia, as distinct from advice that he would have the ability to do such an accounting job after he completed accounting studies. This is consistent with the Applicant’s earlier evidence to the Tribunal that when he finished accounting studies he would return to India and “look for a permanent job over there”.
Further, contrary to the Applicant’s contention, the Tribunal took this evidence into account. Read fairly, it is apparent that paragraph 12 of the Tribunal’s reasons, in particular the final sentence, is a reference to this evidence. Paragraph 12 is as follows:
When asked about the enrolments related to the current Student Visa education, including the Advanced Diploma of Network Security (already completed) and the Advanced Diploma of Accounting, the applicant said the later (sic) will allow him to obtain employment in India. Asked why the former would not be sufficient, the applicant said he asked about employment on his last trip to India and was told to finish his accounting.
This summary is consistent with the Applicant’s evidence at the Tribunal hearing. Moreover, at paragraph 21 of the Tribunal’s reasons for decision, the Tribunal considered the potential value of the accounting course to the Applicant’s future. However it found that he had already completed several courses at a level below tertiary studies, including the Advanced Diploma of Network Security completed in July 2015, and that in those circumstances it was “difficult to accept that further study at the same level will provide a proportional increase in the applicant’s employment prospects”.
This finding was sufficiently broad to deal with the issue of the value or benefit to the Applicant of undertaking the proposed accounting course in Australia. It was not necessary for the Tribunal to make a further finding specifically about or in response to the Applicant’s evidence as to what his employer had told him in order to consider his claims in this respect (see Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]).
It has not been established that the Tribunal failed to take into account the Applicant’s evidence in a manner constituting jurisdictional error.
The Applicant’s solicitor also took issue with the Tribunal’s finding as to the potential value of the intended accounting course to the Applicant’s future on the basis that the preamble to Direction No. 53 required decision-makers to take a “balanced approach”.
I note that the “balanced approach” referred to in the preamble to Direction No. 53 is between the need to make a timely decision and the need to identify applicants who do not genuinely intend to stay in Australia temporarily.
Initially the Applicant appeared to contend that, contrary to the Tribunal’s findings, the proposed Accounting course was at a higher level than the Network Security course in which he was then enrolled. It was subsequently conceded that both courses were Advanced Diploma courses. The solicitor for the Applicant then explained that the concern about the Tribunal’s approach was that the Advanced Diploma of Accounting course was a different course from the Network Security and other courses the Applicant had studied (even though they may be at the same level). It was submitted that the specific relevance of the Accounting course to the Applicant’s possible employment (as indicated by the remark of his former employer) would make a difference for the Applicant. The Applicant also disagreed with the Tribunal’s view that in these circumstances it was difficult to accept that further study at the same level would provide a proportional increase in his employment prospects. There was said to be no basis for this statement by the Tribunal, as there was evidence before it that the further study in accounting would assist the Applicant in obtaining a job in India as an “accountant”.
Insofar as the Applicant contended that the proposed study would in fact make a real or significant difference to his employment prospects, he disagrees with the merits of the Tribunal decision. To the extent that the Applicant suggested that there was evidence before the Tribunal that the Accounting course would assist him in obtaining better employment in India, the Tribunal understood this and referred to the Applicant’s submission about the reasons he had chosen to study Accounting. The Tribunal was not obliged to accept the Applicant’s submission about the extent to which the proposed study would enhance his future employment prospects (and see direction 12). Further (as discussed above), the Applicant’s evidence at the Tribunal hearing did not go so far as a claim that his former employer would provide employment to him if he completed his accounting studies in Australia.
Reading the Tribunal reasons for decision fairly and as a whole, it is clear that the Tribunal considered the issue of whether and to what extent the proposed course of study would benefit the Applicant in terms of future employment. It was reasonably open to it to be of the view that it was difficult to accept that further study at the same level (albeit in a different course) would provide a “proportional” increase in the Applicant’s employment prospects. I also note that the Tribunal had raised its concern in this respect at the hearing as set out at [71] above.
The Tribunal’s reasons reveal that it understood that it must have regard to Direction No. 53. It referred to and considered relevant facts and circumstances which bore upon the matters referred to in the direction. In so doing it considered the factors specified in the direction insofar as necessary to do so, in light of all the evidence and information before it, including relevant information provided by the Applicant. It has not been established that it fell into jurisdictional error in this respect.
The general contention in particular (a) to the grounds of review is not made out.
Particular (b) asserts generally that the Tribunal failed to have regard to the Applicant’s circumstances in his home country (as referred to in direction 6 in Direction No. 53). Direction 6 is to be seen in light of direction 9 which specifies facts to which decision makers must have regard in considering such circumstances.
It has not been established that the Tribunal failed to have regard to the Applicant’s circumstances in his home country of India insofar as they were known to it. For example, the Tribunal referred to the Applicant’s reasons for not studying in India, his family ties in India and his father’s medical condition. The Tribunal actively engaged with the Applicant’s circumstances in his home country, finding that the fact that he had an extended family and a spouse residing in India may indicate a strong incentive to return, but it also considered other countervailing factors of relevance to whether he met the criterion in issue.
Particular (c) takes issue with whether the Tribunal had allowed for any “reasonable motives” as established by the Applicant for not undertaking study in his home country in a similar course, as stated in direction 9a in Direction No. 53.
The Tribunal expressly dealt with the Applicant’s reasons for choosing to study in Australia. There is no suggestion that the particular issue of the availability of a similar course in India was raised by the Applicant. The Tribunal acknowledged the reasons the Applicant gave for choosing to study in Australia, but found that other factors (including its concern about the potential value to the Applicant of a course of study at the same level as earlier study) were such that it was not satisfied he intended genuinely to stay in Australia temporarily.
As to particular (d), the Applicant takes issue with the weight given to an aspect of his circumstances (his personal ties in his home country). The weight to be given to such matters is for the Tribunal and, as discussed in relation to ground 2, the decision is not such as to reveal illogicality, irrationality or legal unreasonableness.
The Tribunal’s approach to the Applicant’s personal ties in India does not reveal a failure to have regard to relevant aspects of Direction No. 53 insofar as it was necessary for it to do so, or to the matters specified in clause 572.223(1)(a) in Schedule 2 to the Regulations. The Tribunal considered these matters in the process of weighing up the Applicant’s circumstances as a whole.
Particular (e) to ground 1 sets out direction 16 in Direction No. 53. It is apparent when particular (e) is read with particular (f) that this aspect of ground 1 takes issue with the Tribunal’s reasoning about family ties.
In written submissions the Applicant appeared to contend that in failing to address the reasoning of the delegate the Tribunal had failed to give proper consideration to his detailed submission to it. This issue is discussed above. Such a contention misunderstands the role of the Tribunal. Further (as also considered above) it was open to the Tribunal to summarise the Applicant’s written submission.
Particular (f) involves a contention that the Tribunal’s reasoning in paragraph 18 of its decision was “flawed”. Paragraph 18 is as follows:
In relation to the applicant’s circumstances, the Tribunal notes that the applicant has extended family and a spouse residing in India and this may indicate a strong incentive to return. However during the hearing the applicant gave evidence that his spouse has been prevented from entering Australia because his Student Visa was not granted, and that he plans on his spouse joining him if the current Student Visa is granted. The applicant also gave evidence that he has a brother/cousin who is a Permanent Resident in Australia. These factors indicate that the applicant does have strong family ties, or the potential for strong family ties, in Australia.
(errors in original)
Particular issue was also taken in this context with the Tribunal’s observations at paragraph 8 which are as follows:
At the hearing the Tribunal asked the applicant about points that had been raised in his written submission. The applicant provided evidence that sometimes conflicted with his written submission, as outlined below:
·Despite submitting that the applicant had no close relations or ties in Australia, during the hearing the applicant said that his brother/cousin was a permanent resident and lived in Sydney. In addition, despite making the point that his wife continued to reside overseas, the applicant said that he had been unable to bring her to Australia because his Student Visa had not been granted, and he gave evidence that he planned to have his wife joined (sic) him in Australia if the visa was granted. Both of these points negate the evidence given by the applicant regarding lack of significant ties in Australia;
·Despite submitting that he had not obtained employment or joined any community groups or bought any considerable assets that would indicate a planned stay longer than his educational needs in Australia, when questioned at the hearing the applicant gave evidence that he had been employed during the majority of his time in Australia, generally on a casual or part-time basis as a kitchen hand. The applicant also gave evidence that he had enrolled in Tourism as a possible pathway to sponsorship to remain in Australia. (The tribunal is not raising any concern with the applicant considering a possible pathway to remain in Australia, and does not find that this in itself negates a finding that the applicant satisfies the genuine temporary entrant criteria). What is the relevance is that the submission stated that the applicant had not gained employment in Australia, whilst during hearing the applicant stated that he had. In addition, this negates the evidence that the applicant does not have ties through employment to Australia.
The Applicant’s solicitor submitted that the Applicant had no family members in Australia except for a cousin and that a cousin would not qualify to be a close family member, so that the Tribunal’s reasoning was wrong because it was not based on facts. This aspect of the submission seeks impermissible merits review.
Insofar as the solicitor for the Applicant raised an issue about whether the person who was in Australia was a brother or a cousin or some other relative (in circumstances where the Tribunal described this person as a brother/cousin), when regard is had to the transcript of the Tribunal hearing it is apparent that the Applicant (through the interpreter) referred initially to his “brother” in Australia but then stated that he was a “cousin/brother”.
In adopting and using the language of the Applicant (through the interpreter) to describe this person, the Tribunal did not fall into error in a manner constituting jurisdictional error. Rather, it had regard to the fact that there was a family member who was a permanent resident residing in Australia and that this showed a link to this country which may suggest a reason why the Applicant would not be intending to stay in Australia temporarily.
The Tribunal’s finding at paragraph 18 of its reasons must be seen in light of the whole of the decision, including its earlier discussion (at paragraph 8) of the fact that the Applicant claimed in his written submission that he had no close relations or ties in Australia, whereas at the hearing he said that his brother/cousin was a permanent resident of Australia and lived in Sydney. The Tribunal was of the view that the Applicant’s oral evidence conflicted with and negated his written evidence regarding his lack of significant ties in Australia.
This does not reveal “flawed” reasoning indicative of a failure to weigh up the Applicant’s circumstances as a whole, or that is otherwise such as to demonstrate jurisdictional error. It was reasonably open to the Tribunal to be of the view that there was a conflict in the Applicant’s evidence and that his oral evidence (and also the evidence about the Applicant’s intention that his spouse join him in Australia if his student visa was granted) indicated that he had strong family ties, or the potential for strong family ties, in Australia.
Particular (f) also takes issue with the Tribunal’s reasoning in relation to the Applicant’s evidence about his spouse. The Applicant submitted that his oral evidence about his intention to bring his wife to Australia from India if his application for a visa was successful could not be construed as relevant to negate the evidence he gave regarding the lack of significant ties in Australia.
However the Tribunal explained (at paragraph 8) that despite the fact that the Applicant made the point in written submissions that his wife continued to reside overseas, at the hearing he had said that he had been unable to bring her to Australia because his student visa had not been granted and that he planned to have her join him in Australia if the visa was granted. The Tribunal found that this oral evidence conflicted with and negated the Applicant’s written evidence regarding lack of significant ties in Australia or, as the Tribunal explained at paragraph 18, “the potential for strong family ties in Australia”.
As the First Respondent submitted, paragraphs 8 and 18 of the Tribunal’s reasons have not been shown to involve a failure to weigh up the Applicant’s circumstances as a whole and are not indicative of jurisdictional error. The Tribunal’s reasoning in the first dot point in paragraph 8 (noting that the Applicant had a brother/cousin) involved a use of terminology (brother/cousin) that reflected the lack of clarity in the Applicant’s evidence about whether his relative in Australia was a brother or a cousin. The Tribunal understood the Applicant’s evidence was that this person, who had permanent residence, was in Australia. It also noted that the Applicant intended to have his wife live in Australia with him if the visa was granted. The Tribunal’s view that the Applicant’s oral evidence on these matters negated his written evidence regarding the lack of significant ties in Australia and its finding in paragraph 18 that those factors indicated that the Applicant did have strong family ties (his brother/cousin) or the potential for strong family ties (to his wife) in Australia are not such as to demonstrate the extreme illogicality necessary to give rise to jurisdictional error in the sense considered by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] as discussed further below in relation to ground 2.
Insofar as the Applicant otherwise disagreed with the weight the Tribunal attributed to this inconsistency, it is not permissible for the Court to substitute its own view for that of the Tribunal as to the appropriate weight to be given to particular evidence.
Further, and contrary to the Applicant’s contention, the Tribunal did not err in using an expression not to be found in Direction No. 53 in referring to the “potential” for strong family ties. It was open to the Tribunal to consider such a factor as part of all the relevant circumstances (and see clause 572.223(1)(a)(i)). I also note that direction 11 in Direction No. 53 refers to “the applicant’s ties with Australia which would present as a strong incentive to remain in Australia. These may include family and community ties”.
In submissions, the solicitor for the Applicant described the Tribunal’s consideration of the fact that the Applicant had provided oral evidence that sometimes conflicted with his written submission in relation to his employment in Australia as “a feeble attempt to make the point so made” in relation to an “alleged” conflict in his evidence.
It was stressed that the Applicant’s evidence was, as the Tribunal observed, that his employment in Australia was generally on a casual or part-time basis as a kitchen hand. It was also submitted that there was no conflict between his written submission to the Tribunal and his evidence at the hearing and that this part of the reasoning “strayed well away from the guidelines in Direction No.53”.
In the second dot point in paragraph 8 of the Tribunal decision set out at [90] above, the Tribunal was considering the difference between the Applicant’s written evidence that he had not obtained employment in Australia, in particular his written claim that, as he put it, “I have not gotten a job”, and his oral evidence.
The Tribunal had regard to the fact that, when questioned at the hearing, the Applicant gave evidence that he had been employed the majority of the time in Australia, generally on a casual or part-time basis as a kitchen hand. In light of this evidence, it was reasonably open to the Tribunal to find that the Applicant gave oral evidence that conflicted with his written submission that “I have not gotten a job”.
The fact that the Applicant’s evidence was that his employment was generally on a casual or part-time basis as a kitchen hand does not render the Tribunal’s view that there was a conflict in the evidence illogical, irrational or unreasonable (and see further ground 2 below). Nor does it demonstrate that the Tribunal’s reasoning “strayed well away from the guidelines in Direction No. 53”, let alone that it did so in a manner indicative of jurisdictional error.
The Applicant also contended that in making decisions of the type in issue in this case, decision makers had to be mindful of “the big picture”. This submission was put on the basis that the objects of the ESOS Act as set out in s.4A of that Act, were as follows:
(a) to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and
(b) to protect and enhance Australia’s reputation for quality education and training services; and
(c) to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.
When given the opportunity to explain this submission, the solicitor for the Applicant contended that in this case the Applicant had spent so many years here and done so many courses and that he was “at the doorstep” (if he was given the chance) of completing the Advanced Accounting course and returning to India to obtain employment which, it was submitted, he had been assured he would be given if he completed that course. Such contentions seek impermissible merits review.
The ESOS Act has no relevance in this case. There is also no evidence of incorrect PRISMS records of the nature considered in Wei.
While expressed in terms of an obligation on the part of the Tribunal to comply with Direction No. 53, insofar as the Applicant’s submissions appeared to assert a failure to deal with particular pieces of evidence, this is not a case in which it has been established that the Tribunal ignored or failed to consider relevant information before it such as to demonstrate a failure to perform its statutory task. Nor has it been established on any of the bases contended for by the Applicant that the Tribunal failed to engage actively with relevant issues or information.
Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal made a legally unreasonable decision and relies on the particulars to ground 1.
In written submissions the Applicant submitted that the Tribunal’s findings were not based on the evidence before it and could not be regarded as being based on logic or rationality. It was contended that the Tribunal failed to follow the clearly laid down guidelines in Direction No. 53 or to address the issues raised by the Applicant in relation to the delegate’s reasoning (as discussed above) and that this demonstrated that the Tribunal’s decision was vitiated by jurisdictional error as a consequence of irrationality, illogicality and unreasonableness.
The only authority cited by the Applicant in support of these propositions was the decision of this court in Jung. In Jung it was alleged that a Tribunal decision not to grant the Applicant a medical treatment visa was not based on the evidence before it and was illogical or irrational, consistent with the remarks of Crennan and Bell JJ in SZMDS at [135] to the effect that “[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.”
Judge Brown also referred to the discussion of the standard of legal unreasonableness in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] before concluding in Jung that the particular decision in question “lack[ed] an evident and intelligible justification” (at [66]).
However the application of such principles has to be considered in the context of the particular case in question. The fact that legal unreasonableness was established in another case in which the Tribunal took into account an applicant’s intention to remain in Australia does not, of itself, lead to the conclusion that the present decision is legally unreasonable, either as a result of an identifiable error or on an outcome focused basis.
The various issues raised in relation to ground 1 are discussed above. As the First Respondent submitted, no identifiable legal error has been established in relation to the Tribunal’s reasoning. It has not been established that the Tribunal failed to weigh up the Applicant’s circumstances as a whole. Nor has it been established that its approach to the evidence before it was irrational, illogical or otherwise such as to demonstrate identifiable error in the sense considered in Singh and other cases in relation to legal unreasonableness. The Tribunal’s reasons must be read as a whole. I am not satisfied that the Tribunal’s decision was arbitrary, capricious or lacking in common sense (see Singh at [44]). There was an evident and intelligible justification for the Tribunal’s conclusion based on its assessment of the Applicant’s circumstances and other relevant matters.
In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [59]-[61] the Full Court made the point that in SZMDS Crennan and Bell JJ had stated that if reasonable minds could differ as to the conclusion to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion (and see Minister for Immigration and Border Protection and SZUXN [2016] FCA 516; (2016) 69 AAR 210). This is such a case. For the Applicant to succeed on this basis it would be necessary for him to demonstrate “extreme” illogicality and he has not done so (CQG15 at [61]).
The Applicant’s allegation of implausibility in the Tribunal’s reasoning and disagreement with its reasoning in various respects, including in relation to the weight it gave to various matters and items of evidence and its conclusion do not establish such extreme illogicality. The decision involved an evaluation of all the relevant circumstances, in accordance with cl.572.223(1) and Direction No. 53. A rational Tribunal could, on the material before it, have made the same findings and reached the same decision as the Tribunal. Even if a different
decision-maker could have taken a different approach, that does not establish illogicality, irrationality or unreasonableness. The weight to be given to particular factors is a question in respect of which reasonable minds may differ, but disagreement, even emphatic disagreement, with the weight given to particular factors by the Tribunal does not suffice. Neither the process of reasoning nor the outcome has been shown to be unreasonable. The Tribunal reasoning has not been shown to be irrational or illogical and legal unreasonableness is not established.
Ground 2 is not made out.
As no jurisdictional error has been established on any of the bases put forward by the Applicant, the application must be dismissed.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 13 March 2019
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