Khatri v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 673
•30 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khatri v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 673
File number: MLG 2721 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 30 July 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants student visas – whether the Tribunal failed to consider, or failed to properly evaluate, all the evidence provided by the applicants – whether the Tribunal failed to properly conduct the review – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal failed to give proper reasons for its decision – whether the Tribunal used the factors in Ministerial Direction No 69 as a checklist – whether the Tribunal failed to assess all factors specified in Ministerial Direction No 69 – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 338, 347, 348, 353, 357A, 359A, 360, 360A, 476, 477
Migration Regulations 1994 (Cth) Sch 2, cll 500.212, 500.311
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Kaur v Minister for Immigration and Border Protection (2014) ALD 292; [2014] FCA 1046
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238; [2016] FCA 858
Singh v Minister for Immigration [2018] FCCA 1684
W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 407; [2002] FCAFC 432
Division: Division 2 General Federal Law Number of paragraphs: 118 Date of hearing: 18 July 2024 Place: Melbourne Applicants: The first applicant appeared in person. Counsel for the First Respondent: Ms A Rath Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2721 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMIT KHATRI
First Applicant
JYOTI PAL
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
30 JULY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants applied for Student (Temporary) (class TU) (subclass 500) visas (student visas). A delegate of the Minister refused to grant the applicants student visas and the Administrative Appeals Tribunal (Tribunal) on review affirmed the delegate’s decision. The applicants applied for judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act). The application for judicial review contains seven grounds.
For the reasons explained below, the applicants have not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
VISA APPLICATION AND DECISIONS
The applicants applied for student visas on 10 January 2017. The first applicant was the primary visa applicant and the second applicant was included in the application as a member of the same family unit.
On 25 January 2017 a delegate of the Minister refused to grant the applicants student visas. The delegate was not satisfied that the first applicant met the genuine temporary entrant criterion in cl 500.212 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the second applicant met the criterion in cl 500.311 of the Regulations because she was not a member of the family unit of a person who holds a student visa.
On 10 February 2017 the applicants applied to the Tribunal for merits review of the delegate’s decision. The applicants were represented by a registered migration agent for the purposes of the review.
On 26 April 2018 the Tribunal sent to the applicants an invitation to attend a hearing on 19 June 2018. The Tribunal provided with the invitation a copy of Ministerial Direction No 69.
The applicants provided a submission and various evidentiary documents in response to the invitation.
The first applicant appeared at the hearing before the Tribunal on 19 June 2018 to give evidence and present arguments in relation to the review.
On 29 August 2018 the Tribunal affirmed the delegate’s decision not to grant the applicants student visas.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal considered whether the first applicant met the genuine temporary entrant criterion in cl 500.212, which provides:
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.
In considering whether the first applicant met the criterion in cl 500.212(a), the Tribunal had regard to Ministerial Direction No 69. The Tribunal acknowledged that the Direction indicated the factors specified should not be used as a checklist but rather were intended to guide decision-makers when considering an applicant’s circumstances as a whole.
In considering the first applicant’s circumstances in his home country, the Tribunal accepted that he had extended family in India, including a young son, but found that this factor had not been a strong incentive for the first applicant to return to India, noting that the applicants might have considered returning home at several junctures in the past if this factor was an incentive to return. The Tribunal acknowledged the first applicant’s evidence that he owned land and two houses in India which were in his father’s name. The Tribunal acknowledged the first applicant’s evidence that there were no adverse reasons to prevent him from returning to India, and the Tribunal made no findings against the first applicant, based on the economic or political circumstances, potential military service or civil unrest in his home country, circumstances in the home country relative to Australia or any other country, or the first applicant’s circumstances in the home country relative to others in that country. The Tribunal also noted that there was considerable disparity in economic circumstances between India and Australia and found this decreased the first applicant’s incentive to return home. The Tribunal found that the first applicant’s intention to live in Australia was motivated by factors other than study.
In considering the first applicant’s potential circumstances in Australia, the Tribunal noted the first applicant had resided in Australia for eight years and that he had travelled offshore on only two occasions during that time. The Tribunal considered the first applicant’s study history, viewed in its entirety, showed that he had spent over eight years enrolling in different courses in the Vocational Education and Training (VET) sector which were relatively inexpensive and of short duration. Taking into account this study history, the Tribunal was not satisfied that the first applicant was a genuine student seeking to progress academically and instead considered that he appeared to be using the student visa program to maintain ongoing residence. The Tribunal also found that by having his wife in Australia as a dependent visa applicant, the first applicant had little incentive to conclude his studies and quit Australia. The Tribunal acknowledged that the applicants’ young son currently lived in India and observed that the applicants appear to have settled for this arrangement in order for them to pursue their goal of maintaining residence in Australia.
The Tribunal considered the value of the proposed course to the first applicant’s future. The Tribunal considered that the first applicant’s catalogue of enrolments from Painting and Decorating to Automotive Mechanical Technology to Business and Management to Building and Construction to Management then to Marketing to Human Resources and, at the time of the visa application, to Leadership and Management was so substantial that it raised serious concerns about the genuineness of his intentions. The Tribunal noted the change in the first applicant’s career goals from, at the time of the visa application, wanting to start his own construction business in India, to, at the time of the Tribunal hearing, pursuing enrolments in the hospitality pathway, commencing with a Certificate III in Commercial Cookery.
The Tribunal gave some weight to the first applicant’s business plan concerning a restaurant he proposed to establish on his return to India, noting that the business plan was detailed and appeared to be well-researched. However, when viewed in the context of the other evidence, the business plan was not of itself sufficient to persuade the Tribunal that the first applicant had a genuine intention to reside temporarily in Australia.
The Tribunal placed significant weight on the conflicting evidence between the first applicant’s statement in his visa application, expressing an interest in a construction business, and his sudden change after the refusal of his visa application to pursue hospitality studies. The Tribunal gave little weight to the value of the applicant’s current studies to his stated career goals because the Tribunal was not persuaded of the genuineness of his goals.
The Tribunal found it difficult to reconcile the first applicant’s lengthy proposed stay onshore with his claim that he was a genuine temporary resident. The Tribunal also observed that the first applicant confirmed on several occasions in his oral evidence that his study choices were determined by his efforts to remain onshore and not for reasons of academic progression towards a career goal. The Tribunal also observed that the first applicant confirmed he had attempted to obtain permanent residency but was unsuccessful. The Tribunal found that there was a marked inconsistency in the first applicant seeking permanent residency on the one hand and, on the other hand, his evidence to the Tribunal that he had a genuine intention to complete his hospitality studies and then return to India to embark on a career in that sector. The Tribunal found that by applying for permanent residency, the first applicant had declared a settled intention to remain permanently in Australia and that weighed heavily in the Tribunal’s decision on the review. The Tribunal considered that the applicant was using the student visa program to circumvent the intentions of the migration program and maintain ongoing residence.
Having considered the first applicant’s circumstances and the evidence provided, the Tribunal was not satisfied that the first applicant had a genuine intention to stay temporarily in Australia and accordingly found that he did not meet the requirement in cl 500.212(a). The first applicant therefore did not meet the requirements of cl 500.212 and the criteria for the grant of the student visa were not met. The Tribunal found that the second applicant did not meet the criterion in cl 500.311 as she was not a member of the family unit of the person who is the holder of a student visa.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 11 September 2018 and the application was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The seven grounds set out in the application are reproduced in the consideration of the grounds below.
The evidence before the Court comprises the court book filed on behalf of the Minister on 30 April 2020 and an affidavit of Amron Rath filed on behalf of the Minister on 20 March 2024 annexing copies of the documents that were provided to the Tribunal on behalf of the applicant, but which were not included in the court book.
At the hearing, I explained to the first applicant the role of the Court and I advised the first applicant of the need to provide sufficient detail in relation to his grounds to enable the Court and the Minister to properly understand the grounds. The first applicant was given an opportunity to provide particulars in relation to his grounds, and the Court drew to his attention the grounds that the Minister submitted should be dismissed because they were not adequately particularised. For the most part, the first applicant declined to make any submissions directly relating to any of his grounds. In addressing one of the grounds, the first applicant submitted that he was unable to recall the relevant information. The first applicant did not bring a copy of the Tribunal decision to the hearing and the Court arranged for a copy of the decision to be printed and provided to him. The Court stood the matter down to allow the first applicant an additional opportunity to read the Tribunal’s reasons and see whether he could recall the matters he had forgotten. When the matter resumed, the first applicant was invited to make further submissions, but declined to do so.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants' complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The first applicant’s submissions at the hearing
When given an opportunity to make oral submissions at the hearing, the first applicant submitted that he studied here in Australia and is in the same occupation but the Tribunal refused his application. He submitted he was studying when he made his application, but after the refusal he could not do anything. He submitted that he deserves another chance because he has studied over here and wants to make a career over here after studying.
These submissions relate to the first applicant’s personal circumstances and why he wishes to remain in Australia. They do not assert any jurisdictional error in the Tribunal decision and do not establish jurisdictional error.
Ground 1
Ground 1 reads:
The Administrative Appeals Tribunal (Tribunal) failed to fully and substantively consider the evidence provided by the applicant at the hearing. The Tribunal accordingly failed to uphold procedural fairness and failed to exercise its jurisdiction in the sense discussed in Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 per Mansfield J. The Tribunal erred in finding that the applicant was not a ‘genuine applicant for entry and stay in Australia temporarily as a student’ under clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), and in failing to satisfy itself having regard to Ministerial Direction No. 69 (Direction). The Tribunal’s findings are unreasonable, erroneous and do not reflect the applicant’s genuine intention to stay in Australia temporarily.
Particulars
a.At [17] of the decision under review the Tribunal finds that the applicant’s extended family (including their young son) has not been a strong incentive for them to return to their home country. This finding has been reached on an unsubstantiated basis without proper and adequate consideration.
i.The Tribunal treats its proposed junctures-where the applicant might have returned home but did not-as evidence of there being no genuine incentive for the applicant to return to their home country. This example of conclusion and evidence is not logically sound. There is no supporting material clarifying whether the applicant was given an opportunity to explain or respond, neither is the applicant’s response, if any, set out or addressed. Even the more general question of why the applicant did not travel outside Australia more frequently (relevant to the delegate’s point 1 at [13] of the decision under review) was not raised.
ii.Therefore, the Tribunal fails to ask questions of relevance to the applicant which may have adduced significant evidence, simultaneously making a conclusion based on conjecture and unspecified evidence.
iii.Furthermore, by failing to consider or question whether the applicant’s lack of return trips to their home country was outside of their control, the Tribunal is unable to consider or address the reasonable possibility that the applicant is unable to adequately visit their young son whilst in Australia, thus serving as a significant incentive to return to their home country consistent with subclause 9(b) of the Direction.
iv.This lack of real and genuine consideration is in the sense discussed in Singh v Minister for Immigration & Anor [2018] FCCA 1684 at [41]. The Tribunal has failed to investigate the extent of the applicant’s circumstances and therefore reaches its conclusions without adequately considering the entirety of the applicant’s circumstances.
b.Given that at [18] of the decision under review “the Tribunal makes no findings against the applicant based on...economic or political circumstances [in the home country]”, the Tribunal’s statement at [19] noting “the considerable disparity in economic circumstances between India and Australia decreases his incentive to return home” is contradictory. This statement is in itself a finding against the applicant and the Tribunal ought not to be ‘noting’ said finding as if it were a statement of fact, particularly considering its hasty, generalising nature.
i.That “decision makers should be aware of the changing circumstances in the applicant’s home country” (subclause 9(e) of the Direction) is a matter introduced with the consideration of “political and civil unrest in the applicant’s home country” suggests that the Tribunal’s conclusion at [19]-regarding the economic circumstances of the applicant’s home country de-incentivising return-is an expansion of scope not in the spirit of the Direction and potentially inconsistent or overlapping with other subclauses of Direction clause 9. It must be noted that the Direction already addresses economic circumstances at subclause 9(c) and the Tribunal at [18] has already concluded that it makes no findings against the applicant for the factors relevant to subclause 9(c).
ii. Accordingly, there stands no significant incentives for the applicant not to return to their home country.
iii. Therefore, in conjunction with the Tribunal’s lack of proper and adequate consideration regarding the applicant’s circumstances relevant to subclause 9(b) of the Direction as proposed at l(a), the Tribunal’s finding at [19] “that the applicant’s intention to live in Australia is motivated by factors other than study” is unsubstantiated and erroneously reached at this stage.
c.At [22] of the decision under review the Tribunal has not addressed or adequately considered relevant material in that despite the cancellations raised at [21], the applicant’s completed courses set out in the table in their representative’s submission and reproduced at [14] does show academic progress.
i. The applicant’s progress from entry level to diploma and advanced diploma level is evident in fields relevant to starting a construction business in India and their later intention of starting a restaurant business in India. This record of completed courses ought to be assessed in conjunction with the critical explanation in the applicant representative’s submission reproduced at [14] dot point 4 regarding the applicant’s reasoning for study in the hospitality sector after December 2016. This material should have been acknowledged or addressed at least to some extent by the Tribunal given its relevance to any conclusion on whether the Student visa is being used to maintain ongoing residence instead of academic progress (clause 11(c) of the Direction). As stated in Minister for Immigration and Border Protection v SZSRS [2014] 309 ALR at 79 [54], “the tribunal can fail to exercise its jurisdiction…by ignoring evidence that is important to a claim”. The Tribunal’s sole note at [21] that “the applicant has completed all the past courses set out in the table” is insufficient as consideration or assessment of the academic progress evident therein.
ii.The Tribunal has no basis to reach its conclusion at [22] that the applicant is not “a genuine student seeking to progress academically” contrary to the evidence adduced from the applicant, and without regard to relevant information present in said evidence.
d.The Tribunal’s conclusion at [23] of the decision under review is unsubstantiated and relevant questions have not been posed to the applicant. Subclause 11(a) of the Direction is being applied here as a checklist factor without reasonable consideration and investigation.
e.At [26], [27] and [28] of the decision under review the Tribunal, as mentioned above, fails to acknowledge, address, and adequately consider relevant material provided in the applicant representative’s submission reproduced at [14] dot point 4.
i.In reaching its findings regarding the value of the applicant’s course(s) to the applicant’s future, the Tribunal states at [27] that it “does not find it plausible that within a few months of the decision...the applicant...pursue[s] a new direction in hospitality studies”. This is inconsistent with the Tribunal’s own information presented at [26] (emphasis added) that the applicant cancelled enrolments relevant to the goal of construction business “sometime after the delegate’s decision of 25 January 2017” and only commenced the Certificate III in Commercial Cookery 6 March 2018. This is not a time of a few months as submitted by the Tribunal at [27] and disregards relevant evidence reproduced at [14] dot point 4 that the applicant “did not know what to do” and used the time to consult with friends and conduct research.
ii.Accordingly, the Tribunal’s contention at [28] (emphasis added) that the “applicant’s conduct displays a pattern of inexplicable...changes” is unreasonable given the Tribunal’s failure to address relevant and significant evidence already present.
iii.The Tribunal’s further and similar conclusions at [31], [32] and [33] are based on reasoning contrary to the evidence adduced from the applicant, and without regard to relevant information present in said evidence.
f.At [30] of the decision under review the Tribunal reaches its conclusion contrary to evidence adduced from the applicant indicating academic progression, as previously outlined at 1(c) of these Grounds of Claim.
g.At [34] and [35] of the decision under review the Tribunal proposes issues of concern and suggests conclusions regarding the applicant travelling “outside of Australia on only 2 occasions” but fails to investigate the extent of the applicant’s circumstances and therefore reaches its conclusions without adequately considering the entirety of the applicant’s circumstance, as previously outlined at 1(a) of these Grounds of Claim.
h.No details have been addressed or considered regarding the applicant’s attempt to obtain permanent residency as raised at [36] and [37], neither are relevant questions asked of the applicant or responses considered in the decision under review. A sole confirmation in oral evidence at [36] that there was an attempt by the applicant is insufficient as evidence of reasonable and substantial consideration by the Tribunal whether a settled intention consistent with Saini & Anor v Minister of Immigration & Anor [2016] FCA 858. The Tribunal’s conclusions at [38] and [39] are therefore inadequately considered and unreasonably reached.
i.The Tribunal’s conclusions at [40], [41], [42] and [43] of the decision under review are untenable on the grounds raised above.
j.The Tribunal’s conclusions at [44] and [45] regarding the secondary and dependent applicant are untenable and must be re-considered on the grounds raised above.
In each of the above sub-paragraphs of ground 1, the Tribunal erred in assessing the Applicant’s genuine intention to stay in Australia temporarily in accordance with clause 573.223(1)(a) of the Regulations and various clauses of the Direction. The Tribunal had no reasonable basis to arrive at the findings contrary to the evidence supplied by the applicant therefore its determination is affected by jurisdictional error.
By ground 1, the applicants assert that the Tribunal:
(a)failed to fully and substantively consider the evidence;
(b)failed to uphold procedural fairness;
(c)failed to exercise its jurisdiction in the sense discussed in Kaur v Minister for Immigration and Border Protection (2014) ALD 292; [2014] FCA 1046 (Kaur), by which I understand the applicants to be asserting that the Tribunal did not consider matters put forward by them, and therefore failed to afford them procedural fairness and failed to exercise its jurisdiction;
(d)erred in finding that the first applicant was not a ‘genuine applicant for entry and stay in Australia temporarily as a student’ and failing to satisfy itself having regard to Ministerial Direction No 69; and
(e)made findings that are unreasonable, erroneous and do not reflect the first applicant’s genuine intention to stay in Australia temporarily.
The ground contains a number of particulars and I address the Minister’s submissions in the consideration of each of the particulars. The applicants did not advance any submissions in support of this ground.
Particular (a) asserts that the Tribunal’s finding at [17] that the applicants’ extended family, including their young son, has not been an incentive for them to return to their home country was reached on an unsubstantiated basis without proper and adequate consideration.
The Tribunal said at [17]:
The Tribunal accepts that the applicant has his extended family, including his young son, in his home country but finds that this factor has not been a strong incentive to return there. Had this been a genuine incentive to do so, the Tribunal finds that the applicants might have considered returning home at several junctures in the past – in 2014 when the applicant completed the Advanced Diploma of Management; in late 2015 when he completed the Advanced Diploma of Marketing or at the end of 2016 when he completed the Diploma of Human Resources Management.
Based on the particulars, the applicants assert that the Tribunal failed to ask them questions relevant to why they did not return to their home country at particular junctures or otherwise more frequently than they did, and that it failed to consider whether the lack of return trips was for a reason outside of the applicants’ control. The applicants assert that the Tribunal failed to give real and genuine consideration to the matter, in the sense described in Singh v Minister for Immigration [2018] FCCA 1684 (Singh) at [41] and that the Tribunal failed to investigate the extent of the applicants’ circumstances and therefore reached conclusions without considering the entirely of their circumstances.
In Singh the Court said at [41]:
I am not prepared to find that the Tribunal was unaware of the existence of the medical certificate in the sense that it had never been seen by the Tribunal. However, I am persuaded that it gave no consideration to the medical certificate in the context of the Applicant’s substantive claims. My view in that regard, in the absence of any specific reference to the medical certificate, is not outweighed by the Tribunal’s general and somewhat formulaic statement in [23] of its Decision Record that it had considered “all the evidence before it, including the evidence regarding the applicant’s circumstances, immigration history, and other matters it considers relevant…”. I do not accept the submission made for the Minister at the hearing in this Court that [23] incorporates or evidences “a consideration of the Applicant’s evidence provided at [the Tribunal] hearing, his letter dated 20 November 2014 and the medical certificate dated 19 November 2014 in relation to his father’s ill health”. There is simply nothing in the Decision Record of the Tribunal to indicate its views one way or the other about the Applicant’s substantive claim concerning his father’s illness in the sense of bringing to bear an “active intellectual process”: SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364 per Collier J at [22]. There is no evidence that the Tribunal gave real and genuine consideration to the Applicant’s claim concerning his father’s illness and the medical certificate. The Tribunal failed in my view to respond to a substantial, clearly articulated argument which relied on the fact of the father’s illness seemingly established by the medical certificate. The Tribunal has failed to consider the entirety and totality of the Applicant’s claim as made and accordingly failed to accord procedural fairness and failed to exercise its jurisdiction: see generally Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 per Mansfield J.
In response to this particular, the Minister submitted that:
(a)there was a clear and intelligible basis for the Tribunal’s findings with respect to the applicants’ incentives to return, specifically, the applicants’ evidence that they had decided to remain in Australia while their son would remain in India in the care of their parents, considered in the context of the first applicant’s study patterns and history, which indicated the applicants had ample opportunity to return to visit their family and son but did so only twice in eight years, suggesting a lack of incentive to return and the finding does not demonstrate any illogicality;
(b)the allegation that the Tribunal failed to ask relevant questions of the applicants should be dismissed because it was for the applicants to make out the case before the Tribunal and the Tribunal was not required to ask the first applicant any particular questions or to otherwise investigate the applicants’ claims; and
(c)the Tribunal did not err in the manner identified in Singh by failing to respond to a substantial, clearly articulated argument, because the Tribunal engaged in an active intellectual process in respect of the evidence before it concerning the applicants’ return travel to India and made findings that were open to it.
I accept the Minister’s submissions in relation to this particular. The Tribunal was required, in assessing whether the first applicant met the genuine temporary entrant criterion, to consider the evidence before it and his claims in relation to that criterion. The Tribunal acknowledged the applicants’ submission that their family connections in India, especially their son, is a strong incentive for them to return permanently to India but, in assessing whether the family connections were a strong incentive to return to India, also considered the evidence of the first applicant’s conduct in leaving Australia only twice since his arrival, and considered this in the context of the opportunities that the first applicant might have had to return, based on his study history. The applicants, in advancing this particular, have not identified any relevant submission or evidence that they gave to the Tribunal that the Tribunal did not consider in reaching this finding. I accept the Minister’s submission that it was a matter for the applicants to advance relevant evidence to the Tribunal. The Tribunal did not have any general duty to inquire about any particular reasons of the first applicant as to why he did not return to India more frequently: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 at [43] (Gummow and Hayne JJ); W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 407; [2002] FCAFC 432 at [74]-[78]. This is not a matter, such as Singh, where the Tribunal failed to give real and genuine consideration to the totality of the applicants’ claims and evidence before it. The Tribunal considered the evidence advanced by the applicants and made findings which were open to it on the evidence before it.
The complaint raised by particular (b) arises from the Tribunal’s reasons at [18] and [19]. In these paragraphs, the Tribunal said:
18.The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 69 that would prevent him from returning to India and the tribunal makes no findings against the applicant based on:
a.any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;
b.circumstances in the home country relative to Australia or any other country; or
c.the applicant’s circumstances in the home country relative to others in that country.
19.The Tribunal notes that the considerable disparity in economic circumstances between India and Australia decreases his incentive to return home. The Tribunal finds that the applicant’s intention to live in Australia is motivated by factors other than study.
The applicants’ complaint is based on a perceived contradiction between the Tribunal’s reasoning at [18] that it makes no findings against the first applicant based on economic or political circumstances in India and its statement at [19] that the considerable disparity in economic circumstances between India and Australia decreases the first applicant’s incentive to return home. The applicants’ contention appears to be that the Tribunal expanded the scope of matters it was required to consider under the Ministerial Direction No 69, and, having not made an adverse finding against the first applicant for the purposes of paragraph 9(c) of Ministerial Direction No 69, it was not open to the Tribunal to find that there were no significant incentives for the first applicant not to return to his home country, or that his intention to live in Australia was motivated by factors other than study.
The Minister submitted that the particular is misconceived, and that the Tribunal did not make a clear finding with respect to paragraph 9(c) of Ministerial Direction No 69 at [18] of its reasons, and instead chose to address that paragraph at [19].
Clauses 9(c) and (e) of Ministerial Direction No 69 provide that, when considering an applicant’s circumstances in their home country, decision-makers should have regard to:
(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 their home country and to Australia;
…
(e) political and civil unrest in the applicant’s home country…
I accept the Minister’s submission that the relevant finding of the Tribunal for the purposes of paragraph 9(c) of Ministerial Direction No 69 is that at [19] of its reasons. The reference to economic considerations at [18] of the Tribunal’s reasons is not inconsistent with the Tribunal’s reasons at [19]. The Tribunal at [18] found that economic circumstances in India would not prevent the first applicant from returning and the finding at [19] was that the economic disparity between India and Australia decreased the first applicant’s incentive to return. These findings are not incompatible. While the wording of the Tribunal’s reasons does not mirror the wording used in Ministerial Direction No 69, little turns on this. The Direction is not a checklist and the Tribunal is not precluded from considering matters that are not expressly referred to in the Direction which it considers to be relevant. I do not accept the applicants’ contention that the Tribunal expanded the scope of Ministerial Direction No 69 in a way that is not in the spirit of the Direction and I am satisfied that the findings made by the Tribunal were open to it on the evidence before it.
By particular (c) the applicants assert that the Tribunal failed to adequately consider that, despite the cancellation of courses, the first applicant’s completed courses show academic progress. The particulars refer to [22] of the Tribunal reasons, where the Tribunal said:
On assessing the applicant’s entire study history, the Tribunal is not satisfied that the applicant is a genuine student seeking to progress academically; on the contrary he appears to be using Student visa program to maintain ongoing residence.
The Minister submitted that the particular fails on the face of the decision record. The Tribunal considered the first applicant’s completed courses in detail. In the context of a detailed analysis of the first applicant’s study history and the value of the proposed study to his future, the Tribunal found the first applicant had undertaken inexpensive and short courses during his time in Australia, which indicated he was using the student visa program to maintain ongoing residence. The Minister submitted that these findings were clearly open to the Tribunal on the material before it and the allegation in particular (c) does not rise above a request for impermissible merits review.
I accept the Minister’s submissions in relation to this particular. I accept that the Tribunal considered the first applicant’s study history in detail and that, on the evidence before it, it was open to the Tribunal to find that the first applicant was using the student visa program to maintain ongoing residence for the reasons that it gave. The matters raised by the particular assert disagreement with the Tribunal decision, which, of itself, is insufficient to establish jurisdictional error, and invite the Court to engage in merits review of the Tribunal decision, which is beyond the power of the Court.
Particular (d) complains about the Tribunal’s finding at [23]. In this paragraph, the Tribunal said:
The Tribunal finds that by having his wife here in Australia as a dependent applicant the applicant has little incentive to conclude his studies and quit Australia. Whilst the applicants’ young son currently lives in India, the applicants appear to have settled for this arrangement in order for them to pursue their goal of maintaining residence in Australia.
The applicants’ complaint appears to be that the Tribunal did not ask relevant questions of the applicant and that the Tribunal applied paragraph 11(a) of Ministerial Direction No 69 as a checklist factor.
The Minister’s submissions in relation to this particular were the same as the submissions advanced in relation to particular (a).
Paragraph 11(a) of Ministerial Direction No 69 provides that, in considering an applicant’s potential circumstances in Australia, decision-makers should have regard to the applicant’s ties with Australia which would present as a strong incentive to remain in Australia, including family and community ties.
As discussed in the context of particular (a) above, it was a matter for the applicants to present all relevant evidence to the Tribunal and the Tribunal did not have any duty to make any particular inquiries about the reasons the second applicant lived in Australia with the first applicant or why the applicants’ child lived in India. The consideration of the first applicant’s living arrangements is something that was relevant to his overall circumstances and there is no basis for finding that, in making its findings at [23], the Tribunal was treating Ministerial Direction No 69 as a checklist.
Particular (e) refers expressly to the Tribunal’s findings at [26]-[28] of its reasons, where the Tribunal said:
26.As noted above, the applicant’s statement in his visa application with regard to his career goals (proposing at that time to study leadership and management courses) focused upon his wanting “to start my construction business in India and to manage my business I need leadership and management skills.” The Tribunal notes that sometime after the delegate’s decision of 25 January 2017 the applicant appears to have cancelled these enrolments and in early 2018 enrolled in the hospitality pathway, commencing with a Certificate III in Commercial Cookery.
27.Given the applicant’s meandering study history over 8 years in Australia the Tribunal does not find it plausible that within a few months of the decision to refuse his latest Student visa application, the applicant experiences an epiphany with respect to a new-found passion in cooking which persuades him to pursue a new direction in hospitality studies.
28.On the evidence, the applicant has made distinct changes to his study and proposed career objectives numerous times, as described above. This casts doubt on the value of all of the courses and associated career plans previously claimed by the applicant. Direction 69 indicates that reasonable changes to career plan should be accommodated. However the Tribunal considers that the applicant’s conduct displays a pattern of inexplicable and erratic changes which go beyond the reasonable redirection of study that is contemplated by Direction 69.
The particular also refers to similar findings at [31]-[33].
As I understand the complaint in particular (e)(i), it is that the Tribunal referred to the first applicant ‘within a few months’ of the delegate’s decision pursuing a new direction in hospitality studies, which is inconsistent with evidence that suggests the period of time was over one year, and that the Tribunal did not consider the first applicant’s submission that he ‘did not know what to do’.
The complaint at particular (e)(ii) is that the Tribunal finding that the changes were ‘inexplicable’ was unreasonable because the Tribunal failed to consider the evidence.
The Minister submitted that the claims at particular (e) are without basis. The Tribunal had regard to the first applicant’s submissions and set them out in detail at [14] of its reasons and there is no inference open that they were overlooked. The Minister submitted that there was no error in the Tribunal failing to expressly refer to the first applicant’s statement in the submissions that ‘he did not know what to do’ after ‘realising these courses are not beneficial for a successful career’. The Minister submitted that the Tribunal considered the evidence before it and gave detailed reasons for its concerns in relation to the first applicant’s study history and the value of courses to his future, and the reasons it gave were open to it. The weight to be afforded to the evidence was a matter for the Tribunal and it was entitled to accept or reject the first applicant’s evidence.
The Tribunal summarised the content of a submission provided to it by the applicants’ migration agent at [14] of its reasons. The Tribunal included in this summary a table setting out the courses that the applicant had successfully completed and his current and further enrolments at the time of the submission. The Tribunal also referred to the first applicant’s submission that, after successfully completing courses in Human Resources Management in December 2016, the applicant ‘was very confused and depressed [and] did not know what to do’ and that following this he consulted with friends, did his own research and decided to enrol in the hospitality sector.
I am satisfied that, having set out this evidence, the Tribunal was aware of it and took it into account in reaching its decision. It is implicit in the Tribunal’s reasons at [27] that the Tribunal did not accept as plausible the first applicant’s explanations for enrolling in courses in the hospitality sector. It was not necessary for the Tribunal to expressly repeat at [27] its earlier reference to the first applicant’s submission that he had been confused after completing his previous course and did not know what to do.
I do not consider that any jurisdictional error can be discerned from the Tribunal’s reference to the first applicant being persuaded to pursue a new direction in hospitality studies ‘within a few months of the decision to refuse his latest student visa application’ in circumstances where, on the evidence, that period might have been one year. The Tribunal’s finding, when read fairly and in context, does not depend on the precise identification of the time at which the first applicant decided to pursue his hospitality studies. If there is an error in the identification of the relevant time frame, it is an error of fact within jurisdiction.
I also do not accept that there is any jurisdictional error in the Tribunal describing the changes to the first applicant’s enrolments as inexplicable. This finding of the Tribunal was a reference to the first applicant’s numerous changes to his courses of study and proposed career path over an extended period of time and the different direction pursued with each change. The finding was open to the Tribunal on the evidence before it. The applicants’ assertion appears to be that because the first applicant provided an explanation for one aspect of the change of the enrolment, it was inappropriate to describe the course changes overall as ‘inexplicable’. It is evident from the Tribunal’s reasons that it was not persuaded by the explanation that the first applicant gave and did not consider that the first applicant had an adequate explanation overall for the various different courses he had pursued and the frequent changes in the direction of his studies. To the extent that the particular may be seen as an assertion that a reason was provided and should have been accepted, this would amount to inviting the Court to engage in impermissible merits review.
The complaint in particular (f) overlaps with part of the complaint expressed in particular (c). The applicants complain that at [30] the Tribunal reached a conclusion that was contrary to the evidence indicating his academic progression.
The Tribunal said at [30]:
The Tribunal finds that the applicant’s subject choices are governed by migration and visa considerations, rather than by alignment with his stated career goals which he contends lie outside Australia. A genuine student is expected to study in a manner which indicates academic progression, particularly since by doing so, the overseas student can achieve his or her study outcomes in the most timely and cost-effective manner.
This particular appears to be based on the premise that, because the first applicant had completed some of the courses he enrolled in, the Tribunal ought to have found that he had progressed academically. The Tribunal referred more than once in its reasons to the courses that the first applicant had completed and was clearly aware that the first applicant had completed some courses. The particular appears to be based on a misinterpretation of the Tribunal’s finding at [30]. The Tribunal did not find that the first applicant had no academic achievements. Rather, the Tribunal’s observations at [30] reflected its findings that the courses undertaken by the applicant did not reflect a clear study path, by which an applicant undertakes courses in pursuit of a stated career goal, but rather reflect a selection of courses chosen to enable the first applicant to continue to apply for student visas in Australia. These findings were open to the Tribunal on the evidence before it.
Particular (g) refers to the Tribunal’s reasons at [34] and [35], in which the Tribunal said:
34.As noted above the delegate found that at the time of decision, the applicant had been onshore for more than 6 years yet had travelled outside of Australia on only 2 occasions. While not necessarily indicative that a person does not wish to remain in Australia temporarily, it is of concern and one of the considerations that the Tribunal must take into account.
35.The Tribunal finds it difficult to reconcile the applicant’s lengthy proposed stay onshore with his claim that he is a genuine temporary resident. Rather, the significant period of time that he has spent in Australia since initial arrival coupled with his infrequent departures out of the country suggest that his potential circumstances in Australia outweigh any incentive he may have to depart.
The applicants contend that the Tribunal failed to consider the entirety of their circumstances in relation to its finding that the first applicant travelled outside of Australia on only two occasions.
The Minister advanced the same submissions in relation to this particular as the Minister advanced in relation to particular (a).
The applicants have not identified any evidence that they gave to the Tribunal as to why the first applicant departed Australia only on two occasions since his arrival six years prior to the Tribunal decision. There is nothing before the Court from which I can conclude that the Tribunal failed to consider the entirety of the relevant circumstances of the applicants. It was open to the Tribunal to have regard to evidence of the first applicant’s prior conduct, including the number of times he had left Australia since his arrival, in assessing whether the first applicant met the genuine temporary entrant criterion.
By particular (h) the applicants complain of the lack of detail in relation to the applicants’ attempt to obtain permanent residency, discussed at [36] and [37] of the Tribunal’s reasons, and assert that the first applicant’s oral evidence was an insufficient basis for the finding, referring to Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238; [2016] FCA 858 (Saini). The applicants further assert that the Tribunal’s conclusions at [38] and [39] were inadequately considered and unreasonably reached.
The Tribunal said at [36]-[39]:
36.In oral evidence the applicant confirmed on several occasions that his study choices were determined by his efforts to remain onshore and not for reasons of academic progression towards a career goal. He also confirmed that he had attempted to obtain permanent residency but was unsuccessful.
37.The Tribunal finds a marked inconsistency in the applicant seeking permanent residency on the one hand and his evidence to the Tribunal that he has genuine intention to complete his hospitality studies and then return to India to embark upon a career in that sector.
38.In considering the significance of the application for permanent residency, the Tribunal takes into account the authority in Saini & Anor v Minister for Immigration & Anor [2016] FCA 858 in which the Court held that if there is a settled intention, at the time of the decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”.
39.The Tribunal finds that by applying for permanent residency, the applicant has declared a settled intention to remain permanently in Australia and this weighs heavily in its decision on the matter under review. The Tribunal is of the view the applicant is using the Student visa program to circumvent the intentions of the migration program and maintain ongoing residence.
The Minister relied on the same submissions advanced in relation to particular (a) and also submitted that the reference to Saini does not assist the applicants. The Minister submitted it was open to the Tribunal to have regard to the fact that the first applicant had applied for permanent residency in assessing whether he had a genuine intention to remain in Australia temporarily. The first applicant’s intention was a relevant consideration and the Tribunal gave it weight as it considered appropriate.
I accept the Minister’s submissions in relation to this particular. I agree that it was open to the Tribunal to have regard to the first applicant’s evidence that he had applied for permanent residency and to infer that this suggested an intention to remain in Australia indefinitely. It was open to the Tribunal to accept that the first applicant had applied for permanent residency based only on his oral evidence to that effect. Contrary to the way in which the particulars are pleaded by the applicants, there is nothing in Saini to suggest that the Tribunal cannot rely solely on the first applicant’s oral evidence to make a finding. The way in which the Tribunal relied on Saini was open to it and the proposition that the Tribunal derived from that case is consistent with the Federal Court’s reasoning.
By particular (i), the applicants assert that the Tribunal’s findings at [40]-[43] are untenable. The Tribunal in these paragraphs expressed its conclusions that:
(a)it was not satisfied the first applicant intended genuinely to stay in Australia temporarily;
(b)the first applicant did not meet cl 500.212(a);
(c)it was not satisfied the applicant was a genuine applicant for entry and stay as a student, as required by cl 500.212; and
(d)the criteria for the grant of a Student (subclass 500) visa were not met and the decision must be affirmed.
This particular appears to be advanced on the basis that, if I accept any of the contentions above, it follows that the Tribunal’s conclusion will also be affected by jurisdictional error. Given that I have not found error in any of the particulars considered above, it follows that I do not find error in the Tribunal’s conclusions in these paragraphs.
By particular (j), the applicants assert that the Tribunal’s findings at [44] and [45] in respect of the second applicant are untenable. In these paragraphs the Tribunal expressed its conclusion that the second applicant did not meet the requirements of cl 500.311 and she was not a member of the family unit of a person who is the holder of a subclass 500 visa or a member of the family unit of a person who satisfies, or has satisfied, the primary criteria as set out in the Regulations.
As with particular (i), this particular appears to be premised on the basis that I accept one or more of the errors asserted in the above particulars. In circumstances where I have not found any jurisdictional error based on particulars (a) to (i), there is no basis for concluding that the Tribunal made any jurisdictional error in its finding that the second applicant did not meet the requirements of cl 500.311.
Conclusion in relation to ground 1
Taking into account the consideration of each of the particulars above, I find that the applicants have not established jurisdictional error by ground 1. I am satisfied that the Tribunal considered all relevant evidence and considered all matters put forward by the applicants. The Tribunal did not have a duty to inquire in relation to matters that were not the subject of evidence or submissions by the applicants, and I note that the Tribunal provided the applicants with a copy of Ministerial Direction No 69, which indicated the types of matters that would be relevant to the Tribunal’s decision. The Tribunal made findings on the evidence before it that were open to it and do not demonstrate any illogicality or irrationality in the sense described by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [131], [135]. The matters raised in ground 1 do not establish any jurisdictional error in the Tribunal’s conclusion that the first applicant did not meet the requirements of cl 500.212 or that the second applicant did not meet the requirements of cl 500.311.
Ground 2
Ground 2 reads:
The Tribunal has breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
Section 338 of the Migration Act sets out the definition of a ‘Part 5-reviewable decision’. The delegate’s decision in the present matter was a Part 5-reviewable decision within the meaning of s 338(2) of the Migration Act.
Section 348 of the Migration Act requires the Tribunal to review a Part 5-reviewable decision if an application is properly made under s 347 of the Migration Act. There is no suggestion here that the application was not properly made under s 347 and the Tribunal was required to review the decision.
Section 353 of the Migration Act provides that, in reviewing a Part 5-reviewable decision, the Tribunal is not bound by technicalities, legal forms or rules of evidence and shall act according to the substantial justice and merits of the case.
Section 357A of the Migration Act provides that Division 5 of Part 5 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters that it deals with, that other sections not relevant to this application are also an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters they deal with, and that in applying Division 5 of Part 5, the Tribunal must act in a way that is fair and just.
I infer from the ground raised by the applicants and the sections referred to in that ground that the applicants are asserting that the Tribunal failed to comply with its procedural fairness obligations in conducting the review and that it failed to conduct the review in a way that is ‘fair and just’. The first applicant declined the opportunity to make submissions in relation to this ground at the hearing.
The Minister submitted that, to the extent that the ground might be viewed as an allegation of denial of procedural fairness, the ground is misconceived and the Minister referred to various provisions of Division 5 of Part 5 and submitted that the Tribunal complied with its obligations under those provisions.
I accept that the Tribunal has complied with its relevant procedural fairness obligations in this matter, including those that arise under Division 5 of Part 5 of the Migration Act. In particular, I observe that:
(a)the Tribunal invited the applicants to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 360 of the Migration Act;
(b)the notice of the invitation sent to the applicants on 26 April 2018 by email to the last email address provided in connection with the review, inviting them to attend a hearing at 10.30am on 19 June 2018 at an address in Melbourne, complied with the requirements of s 360A of the Migration Act;
(c)there was no information before the Tribunal that the Tribunal was required to put to the applicants in accordance with s 359A of the Migration Act; and
(d)the applicants were aware of the dispositive issues from the delegate’s decision.
There is otherwise nothing in the material before the Court that would suggest the Tribunal has failed to conduct the review in a way that is fair and just or that the Tribunal has failed to act in accordance with the substantial justice and merits of the case.
Ground 2 does not establish any jurisdictional error in the Tribunal decision.
Ground 3
Ground 3 reads:
The Tribunal has breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on material questions of fact on which the decision was made.
The obligation of the Tribunal to provide a written statement setting out its reasons arises from s 368(1) of the Migration Act, which relevantly provides:
Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must … make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
…
(f)records that day and time the statement is made.
The applicants did not advance any submissions in relation to this ground.
The Minister submitted that the ground fails on the facts because the Tribunal complied with s 368 of the Migration Act by providing comprehensive written reasons for its decision.
I am satisfied that the Tribunal provided a written statement in this matter and that the Tribunal’s written statement complies with the requirements of s 368(1) of the Migration Act.
The statement records that the decision of the Tribunal was to affirm the decision not to grant the applicants Student (Temporary) (Class TU) visas. The cover of the statement indicates that the statement was made on 29 August 2018 at 4:21pm. The reasons provided in the statement span some seven pages and set out the findings of fact made by the Tribunal, the evidence upon which those findings were based and the Tribunal’s reasons for finding that the first applicant did not meet the genuine temporary entrant criterion in cl 500.212 (a) in Sch 2 to the Regulations and that the second applicant did not meet the requirements of cl 500.311.
Ground 3 is not established.
Ground 4
Ground 4 reads:
The Tribunal has erred jurisdictionally by its failure to objectively consider the totality of the evidence before it.
Particulars
(a)By discounting the evidence before it
(b)By failing to consider the evidence in totality and cumulatively;
(c)By concluding, without proper basis, that the applicant was not a genuine temporary applicant.
When given the opportunity to address ground 4, the first applicant submitted that some parts of the application were avoided, but he could not recall exactly. As indicated above, the first applicant was given a further copy of the Tribunal decision and the hearing was briefly adjourned to afford the first applicant another opportunity to read the Tribunal decision, following which he was again invited to make submissions. The first applicant made no further submissions following the adjournment.
The Minister submitted that this ground was not sufficiently particularised to be meaningful and should be dismissed on this basis alone. The Minister further submitted that the Tribunal explicitly considered the first applicant’s evidence but did not accept he was a genuine temporary entrant. The Minister submitted, relying on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (Applicant WAEE) at [46], that it is not necessary for the Tribunal to refer to every piece of evidence in its written reasons.
I am satisfied that the Tribunal considered all relevant evidence in this matter in assessing whether the first applicant met the genuine temporary entrant criterion. The Tribunal referred to information in the delegate’s decision, information provided by the applicants and their agent, including the submission provided to the Tribunal, and evidence given by the first applicant at the hearing. The Tribunal identified the documentary evidence provided by the applicants with their submission at [14] of its reasons. The Tribunal’s consideration of whether the first applicant intended genuinely to stay in Australia temporarily contains subheadings, including ‘Circumstances in home country’, ‘Potential Circumstances in Australia’, ‘Value of Course to future’ and ‘Previous immigration history’. These subheadings broadly correspond to the relevant headings in Ministerial Direction No 69 and the Tribunal has identified and considered information relevant to the assessment of each of these factors under the respective subheadings.
I accept the Minister’s submissions that the Tribunal was not required to refer to every item of evidence in its reasons. In Applicant WAEE, the Court said at [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…
Any evidence provided by the applicants that the Tribunal did not specifically refer to in the present matter, such as identity documents and financial documents, was irrelevant to the consideration of the genuine temporary entrant criterion and the failure to refer to it in its reasons (other than to acknowledge it was before the Tribunal) does not amount to jurisdictional error. The failure to refer to this evidence in its reasons does not indicate that the Tribunal did not consider the evidence, but rather indicates that the Tribunal did not consider the evidence to have a direct bearing on the issues for its consideration.
The Tribunal considered the evidence before it and made findings based on that evidence. The weight to be given to the applicants’ evidence was a matter for the Tribunal. I am satisfied that the Tribunal considered the totality of the evidence before it and made findings that were open to it on that evidence.
Ground 4 does not establish jurisdictional error in the Tribunal decision.
Ground 5
Ground 5 reads:
The Tribunal erred in evaluating the evidence before it reasonably which materially affected its purported termination. The Tribunal, therefore, committed a jurisdictional error.
The applicants did not make any submissions in relation to this ground. The Minister advanced the same submissions in relation to this ground that he advanced in relation to ground 4.
It is unclear from the applicants’ ground why the applicants say the Tribunal erred in evaluating the evidence before it. To the extent that the applicants by this ground are simply expressing their belief that the Tribunal should have found that the first applicant met the genuine temporary entrant criterion, the ground is without merit. Disagreement with a decision is, of itself, insufficient to establish jurisdictional error.
Otherwise, as discussed in the context of ground 4 above, I am satisfied that the Tribunal considered the evidence before it and made findings that were open to it on that evidence. There is nothing before the Court to suggest that only one conclusion was open to the Tribunal and the Tribunal did not reach that conclusion, nor is there an absence of a logical connection between the evidence and the inferences or conclusions drawn. The decision cannot therefore be seen as illogical or irrational: SZMDS at [135].
Ground 5 is not established.
Ground 6
Ground 6 reads:
The Tribunal used the factors specified in the Direction as a checklist and not considered the applicant’s circumstances as a whole in reaching its finding about whether the applicant satisfied the genuine temporary entrant criterion.
The applicants made no submissions in relation to this ground.
The Minister submitted that this ground is not sufficiently particularised to be meaningful and should be dismissed on this basis alone. The Minister also submitted that the Tribunal identified the relevant criteria to be determined using Ministerial Direction No 69, considered the applicants’ evidence and made findings that were open to it for the reasons it gave.
At [12] of its reasons, the Tribunal acknowledged that:
The Direction indicates that the factors specified should not be used as a checklist but rather, 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 protection criterion.
There is nothing in the Tribunal reasons to indicate that it used the factors in Ministerial Direction No 69 as a checklist, or that it relied on the Direction otherwise than in accordance with the guidance given in the Direction. I am satisfied that the Tribunal considered the first applicant’s circumstances as a whole in finding that he did not meet the genuine temporary entrant criterion.
Ground 6 is not established.
Ground 7
Ground 7 reads:
The Tribunal failed to assess, on balance, the applicant against all factors specified in the Direction and in considering the relevant information provided by the applicant.
The applicants made no submissions in relation to this ground. The Minister advanced the same submissions in relation to this ground as he made in relation to ground 6.
It is difficult to properly understand the applicants’ complaint in circumstances where they have not identified what factors in Ministerial Direction No 69 they believe the Tribunal did not consider or what evidence they provided relevant to the factors in Ministerial Direction No 69 they believe the Tribunal did not consider.
As discussed above, the subheadings used by the Tribunal in its reasons broadly correspond to those used in Ministerial Direction No 69 and I am satisfied that the Tribunal considered all relevant evidence.
Even if the applicants were able to identify a factor in a paragraph or subparagraph in Ministerial Direction No 69 that the Tribunal did not specifically refer to in its reasons, that would not amount to jurisdictional error unless there was relevant evidence before the Tribunal. As Derrington and Thawley JJ said in Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 at [108], in respect of Ministerial Direction No 53, which relates to the assessment of the genuine temporary entrant criterion for other types of student visas:
The primary judge was correct not to draw the inference that those or any paragraphs of Direction 53 were overlooked. There was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no submission had been made, and which were not the subject of evidence, less still to make an express finding about those factors.
I do not accept that the Tribunal in the present case failed to have regard to any relevant factor in Ministerial Direction No 69.
Ground 7 is not established.
CONCLUSION
The applicants have not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 30 July 2024
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