Khilile v Minister for Immigration

[2010] FMCA 990

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHILILE v MINISTER FOR IMMIGRATION [2010] FMCA 990

MIGRATION – Review of decision of a delegate of the respondent – whether the delegate failed to carry out its obligation under cl.573.223(2)(a) – whether the delegate failed to ask the correct question as obliged under cl.573.223(1) – whether the delegate addressed the question of satisfaction as to whether the applicant was a “genuine applicant” – error can be discerned even where no statement of reasons are provided – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.66, 109, 368, 430, 476,
Migration Regulations 1994 (Cth), reg.2.07AO, reg.2.41, Sch.2, Sch.5A, Sch.8

Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140
Sidhu v Migration Review Tribunal [2004] FCAFC 341
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571
Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299
Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Limited [2009] FCAFC 105
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
House v The King (1936) 55 CLR 449
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Ly v Minister for Immigration & Multicultural Affairs [2000] FCA 15
Ticker and Others v Chapman and Others (1995) 57 FCR 451
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280

Applicant: AMANY KASSIM MALAK KHILILE

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 1196 of 2010

Judgment of: Nicholls FM

Hearing date: 7 September 2010

Date of Last Submission: 7 September 2010

Delivered at: Sydney

Delivered on: 17 December 2010

REPRESENTATION

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Australia Legal

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The application made on 31 May 2010, and as further amended, is dismissed.

2. The applicant to pay the respondent’s costs set in the amount of $8,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1196 of 2010

AMANY KASSIM MALAK KHILILE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. This application made on 31 May 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 21 July 2010, seeks review of the decision of the delegate of the Minister for Immigration and Citizenship to refuse a student visa to the applicant.

Background

1. The Minister has put a bundle of relevant documents before the Court (“CB”), from which the following background is drawn.

2. The applicant, Ms Amany Khalile, is a citizen of, and resident in, Egypt. On 21 January 2010 she made an application for a Student (Subclass 573) visa. This was lodged with the Australian Embassy in Cairo (CB 1 to CB 19).

3. On 3 May 2010 a delegate of the Minister decided to refuse the application. The applicant was notified of this outcome by letter dated 3 May 2010 (CB 58 to CB 60). No further reasons for the decision were provided to the applicant at that time.

The Relevant Legal Context

1. The criteria for this class of visa are set out at Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). At the relevant time, the relevant parts of subcl.573.223 (criteria to be met as at item of decision) were in the following terms:

   “(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

   (2) An applicant meets the requirements of this subclause if:

   (a) for an applicant who is not a person designated under regulation 2.07AO:

   (i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 573 and the assessment level to which the applicant is subject, in relation to:

   (A) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and

   (B) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of this visa relating to work; and

   (C) other requirements under Schedule 5A; and

   (ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (B) any other relevant matter.”

2. After setting out the terms of cl.573.223 (as set out above), the following part of the letter is relevant to the current consideration:

   “Examples that may be considered under 573.223(2)(a)(ii)(B) ‘any other relevant matter’ may include any or all of the following:

   - The student’s situation in their home country.

   - The student’s academic record.

   - The student’s links in Australia.

   - Intention to remain in Australia.

   - The student’s incentives to remain in Australia

   - For the Schools sector only-inappropriate study plans.

   - Fraudulent documents.

   - Short courses in Australia.

   After considering all of the information that you have provided in relation to your application, I am not satisfied that you meet the above mentioned criteria. In particular, considerable weight has been given to your personal and economic situation and your overall plan to study the course proposed against your personal circumstances and general incentive to return to your home country. These factors raise significant concerns that cause me to find that, on the balance of probabilities. I am not satisfied that your primary purpose for obtaining a student visa is to study in Australia. Consequently, I am not satisfied that you meet the requirements of clause 573.223(2)(a)(ii)(B).

   In addition to finding that you do not meet the requirement of clause 573.223, I have also assessed your application against the requirements for all of the subclasses of student visa. For the reasons outlined above, I am also not satisfied that you meet the requirements for those subclasses.”

   [Emphasis in the original.]

Before the Court

1. At the hearing of this matter Mr N Poynder of counsel appeared for Ms Khilile. Mr J Smith of counsel appeared for the Minister. Written submissions were provided by both parties. The affidavit (with annexures) of Mr Samy Barsoum, the applicant’s solicitor, made on 21 July 2010, was read into evidence (without objection). The relevant part of the Immigration Department’s Procedures Advice Manual (“PAM 3”) was also before the Court. (“Provisions with respect to the grant of Subclasses of visas – Higher Education Sector”. Schedule 2, Subclass 573.)

Application to the Court

1. The amended application is in the following terms:

   “In determining whether or not the applicant was a “genuine applicant” for entry and stay as a student, pursuant to clause 573.223(1) of the Migration Regulations 1994, the respondent:

   (a) Failed to carry out its obligation to balance each of the matters referred to in clause 573.223(2)(a), instead basing the decision to refuse the visa solely on the criterion in clause 573.223(2)(a)(ii)(B).

   (b) Failed to ask the correct question required by clause 573.223(1); namely, whether the applicant was “a genuine applicant for entry and stay as a student”. Instead the delegate asked an incorrect question; namely, whether the applicant’s “primary purpose for obtaining a visa is to study in Australia”.

2. During the course of the hearing, leave was granted to the applicant to further amend the application by inserting the following after the reference to “in clause 573.223(2)(a)” (when first appearing) “(ii)(A) and (B)”.

Consideration

1. In the first particular to the sole ground of the application, the applicant asserts that the delegate based the decision to refuse the visa solely on the criterion contained in cl.573.223(2)(a)(ii)(B). The complaint is that the decision maker should have had regard, at least, to each of the matters set out in cl.573.223(2)(a).

2. The central part of the applicant’s complaint is that the sole reason for the decision was that the delegate had regard to “any other relevant matter” (cl.573.223(2)(a)(ii)(B)) but did not have regard to the other five matters set out in cl.573.223(2)(a). In other words, that the only criterion which the delegate considered was the “any other relevant matter” criterion.

3. This is said to be shown in a number of ways.

4. First, with reference to the annexure to the affidavit of Mr Barsoum. This annexure is said to be a “case dump” (more commonly known as a “screen dump”) subsequently received from the Minister’s department. I understand this document to be a printed copy of an electronic record of the progress of the applicant’s application for the visa within the Minister’s department.

5. At page 3, under the heading of “Assessment”, the items listed all relate to the sole criterion. This is emphasised when regard is had to the relevant parts of the PAM 3 which show the matters listed to be relevant only to that criterion.

6. Second, of far greater importance, the applicant’s submission was to rely on what was said in the letter itself to argue that the delegate did not have regard to all of the relevant criteria, but only to one. This was revealed in a number of ways:

   1)The phrase “any other relevant matter” was highlighted.

   2)Only the policy guidelines in relation to this phrase was referred to in the letter.

   3)The phrase “the above criteria” (emphasis added) (CB 60.3), used in context of the applicant being found not to meet “the above criteria”, followed the setting out of the policy guidelines in respect of cl.573.223(2)(ii)(B).

   4)The applicant’s circumstances, to which the delegate gave “considerable weight” (CB 60.4), were all matters generally confined to the list of examples in the relevant policy guidelines subcl.573.223(2)(a)(ii)(B), and not to the other criteria.

   5)The delegate’s express statement which made reference only to cl.573.223(2)(a)(ii)(B).

   6)The delegate’s letter failed to make any reference to other elements in the applicant’s personal circumstances which were relevant to the other criteria.

7. The applicant relies on what was relevantly said in Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140, particularly per Gray ACJ, what was said to be the similar approach in Sidhu v Migration Review Tribunal [2004] FCAFC 341, the history of the regulatory amendments leading to the current version of cl.573.223, and the relevant parts of the PAM 3 to submit that in the current case the delegate fell into error by limiting her consideration of whether “… the applicant is a genuine applicant for entry and stay as a student…” (cl.573.223(1)) only to what is set out in cl.573.223(2)(a)(ii)(B). The submission was that there is nothing in the delegate’s findings from which it can be inferred that there was any consideration as to whether the applicant could meet the other criteria in cl.573.223(2)(a). (The whole of that part of cl.573.223 applicable to the applicant who was not a designated person under reg.2.07AO.)

8. The leave sought and granted to amend particular (a) of the amended application (see [8] above) clarified the applicant’s position. For the sake of completeness however I note that any argument that the delegate’s failure to refer to these other elements of cl.573.223(2) leads to error on the basis that the delegate failed to consider them must be rejected. If the applicant did not meet the criterion in cl.573.223(2)(a)(ii) then the application must be rejected.

9. The analysis below as to how the delegate’s decision is to be read provides a further answer to the applicant’s complaint as originally pleaded. But in the meantime, whatever the history of the development of this subclause, the different iterations of its structure and whatever was said by any Explanatory Memoranda, what is left is that its current expression is without ambiguity in providing that each of the three sets of criteria at each of the roman numerals in cl.573.223(2)(a), that is (i), (ii) and (iii), are linked with the conjunctive “and”.

10. That is that for the applicant to be able to satisfy the delegate that she is a “genuine applicant” she would need to satisfy each of the set of elements set out separately in (2)(a)(i) and (ii) and (iii). Her inability to meet any one of these would be fatal to the application.

11. The issue for the Court in the current case therefore comes down to what is set out at cl.573.223(2)(a)(ii). There is no dispute that the delegate considered matters relevant to cl.573.223(2)(a)(ii)(B). The question is whether she also addressed the question of satisfaction as to whether the applicant was a “genuine applicant” as a student “having regard to” what is set out at cl.573.223(2)(a)(ii)(A).

12. For the reasons already set out above, Mr Poynder answers that question in the negative. He relies on what he says is a plain reading of the delegate’s letter, which he said was drafted pursuant to s.66 of the Act, to argue in essence that, as there was no mention of the matter dealt with at “A”, and only references to the matters at “B”, it should be inferred by this Court that the delegate did not have regard to “A”. The law requires that she should have. Legal error is therefore revealed.

13. The resolution of this complaint requires a reading of the delegate’s letter. The initial question is how the letter should be read.

14. A number of relevant authorities were relied on by the parties in argument before the Court. These authorities must also now be considered in light of the Full Federal Court judgment in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 (“Khadgi”) per Stone, Foster and Nicholas JJ, handed down after the hearing in the current matter.

15. Relevantly, Khadgi involved consideration of a decision of the Migration Review Tribunal (and not a delegate) on appeal from a judgment of a Federal Magistrate. This distinction is addressed below.

16. While Khadgi involved s.109(1) of the Act, and reg.2.41, the Full Court considered the relevant principles as to how a decision record is to be read, and in relation to consideration by the decision maker of a provision containing the direction that satisfaction as to the relevant regulatory test is to be achieved in circumstances where the decision maker is to “have regard to” certain circumstances (at [57]-[71]). The words “having regard to” in the regulatory test currently under consideration are indistinguishable.

17. The parties agreed that the delegate’s letter, in effect said to be the proffered record of her decision, should not be over-zealously scrutinised on judicial review to discern whether some inadequacy may be gleamed from the way the letter is expressed. (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”). See also Khadgi at [64] and the reference to Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (“WAEE”) at [47].

18. Of course, as Mr Poynder submits, this does not mean that the Court can read into the letter something that is simply not there. In this sense a “beneficial” reading is not meant to resolve any ambiguity in the decision maker’s favour. (See SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 per Stone J.)

19. What the Full Court said in WAEE at [47] is of assistance in the current case:

    “The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

20. What must also be borne in mind in the resolution of the complaint in the current case is the caution contained in Khadgi directed to this Court (at [77]) against applying an “overly stringent approach” in determining whether the decision maker had regard to the “relevant criteria”.

21. What of course distinguishes this case from many of the authorities (including Khadgi) dealing with the principles applicable to how decision records are to be read in this context is that many of the authorities deal with Tribunal decisions, whereas the current circumstance involve a delegate’s “decision record”. The importance of the distinction of course being that the (Migration) Tribunals are statutorily obliged to provide a statement of reason setting out a range of factors (s.368, s.430: the decision, the reasons for the decision, the finding on any material questions of fact and references to the evidence or other material on which those findings were based).

22. There is no such statutory direction in relation to this delegate’s decision. In fact the combination of s.66(2)(c) and s.66(3) is that the decision maker was not required: “… to give written reasons… why the criterion was not satisfied or the provision prevented the grant of the visa.” The visa applied for could only be granted while the applicant was outside Australia (s.66(3)(a) and cl.573.411) and the decision subsequently made was not a Migration Review Tribunal or Refugee Review Tribunal reviewable decision (s.66(3)(b)) and Pt 5 and Pt 7 of the Act.

23. Mr Smith submits that in these circumstances the delegate’s letter cannot be read in the same way as a statement of reasons. He relies on Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571 (“Yang”) at 584, [54] per Downes J for the proposition that this is a letter, not a decision record mandated by statute, albeit one in which the delegate is attempting to explain her decision. In these circumstances, even if some matters are not referred to in the letter this cannot of itself support the proposition that those matters were not taken into account.

24. Mr Poynder counters with the submission that the joint majority in Yang (per Ryan and Finkelstein JJ) did not apply this proposition. In fact the delegate’s statement of reasons in that case was “scrutinised”, and an inference was drawn that the delegate had failed to have regard to relevant material (Yang at [28] to [30]).

25. What is immediately apparent is that Downes J (noting again that he was in the minority) made an explicit statement (at [54]):

    “… Again, it is important to remind ourselves that we are not dealing with comprehensive reasons for decision. The letter of 5 July, not written by the decision-maker, is simply an attempt to give some explanation for the decision. I would regard it as drawing attention to major considerations rather than as setting out all the considerations.”

26. With respect I did not understand the majority to explicitly state any different. Rather they proceeded on the basis of actually reading what was stated in the letter and drawing inferences from it.

1. The matter becomes clearer however when regard is had to Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299 at [9] per Gray J:

   “Despite the absence of an obligation to give reasons, it is clear that, where reasons are given, it is appropriate for the Court to look at them for the purpose of determining whether any of the grounds of review made available by s 476 of the Migration Act has been made out. In doing so it is necessary to bear in mind the following caution expressed by Kenny J in Ly v Minister for Immigration & Multicultural Affairs [2000] FCA 15 at [27]:

   ‘Finally, the nature of the notification is to be again considered. There was, as already noted, no requirement for written reasons. If (as the authorities establish) it would be wrong to scrutinise overzealously the language of a statement of reasons given by a decision-maker pursuant to some statutory provision like s 420 of the Act, then it would also be wrong so to scrutinise a notification given under s 66(2)(a) of the Act: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J.’”

2. In Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Limited [2009] FCAFC 105 (“Cathay Pacific”) Flick J (with whom Spender J (at [1]) and Lander J (at [4]) agreed) appears to go one step further (at [51]):

   “… Neither the fact that the statement of reasons was provided subsequent to the commencement of the proceeding, nor that it was provided voluntarily, is of relevance. Rule 3(1)(a) itself contemplates that the statement may be filed at the same time as the filing of an application for an order of review ‘or as soon afterwards as is practicable’. Reasons provided voluntarily may be considered with a view to determining whether they expose legal error (Qu v Minister for Immigration and Multicultural Affairs [2001] FCA 1299 at [9] per Gray J) and scrutinised in the same manner as reasons provided pursuant to a statutory obligation (Ly v Minister for Immigration and Multicultural Affairs [2000] FCA 15 at [27] per Kenny J). See also: East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [228]. 254 ALR 112 at 168 per Ashley and Redlich JJ.”

3. Mr Poynder also relied on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) per Gummow ACJ and Kiefel J at [34], and the reference there to Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (“Avon Downs”), for the proposition that the letter in the current case can be “scrutinised” to determine whether error exists.

4. Noting of course what was then immediately said in SZMDS at [35] was a reference to reasons provided under statute (s.430), and generally what was also said in this regard in Wu Shan Liang.

5. At the very least, I do not read any of the authorities as requiring or allowing a greater level of scrutiny of reasons provided voluntarily than those provided under statute.

6. I agree with Mr Smith that the point made in Avon Downs (as with House v The King (1936) 55 CLR 449 and in SZMDS) is that error can be discerned even where no statement of reasons are provided. These are the cases presenting “an inscrutable face” as was said in SZMDS (at [34]). Such error can be discerned, for example, from the very inadequacy of the material before the decision maker (R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100). Even from the absence of reasons an inference may be drawn that there was “an absence of any good reason” (SZMDS at [34] and with reference to Public Service Board (NSW) v Osmond (1986) 159 CLR 656).

7. In this regard it is also important to note what Kenny J relevantly said in Ly v Minister for Immigration & Multicultural Affairs [2000] FCA 15 at [27] (and as referred to by Flick J in Cathay Pacific at [51]):

   “Finally, the nature of the notification is to be again considered. There was, as already noted, no requirement for written reasons. If (as the authorities establish) it would be wrong to scrutinise overzealously the language of a statement of reasons given by a decision-maker pursuant to some statutory provision like s 420 of the Act, then it would also be wrong so to scrutinise a notification given under s 66(2)(a) of the Act: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J.”

8. What I immediately draw for current purposes from these authorities is that regard can be had to the delegate’s letter to see if the applicant’s ground can be made out. Such regard should not involve overzealous scrutiny. The letter can also be understood in light of all of the material before the delegate, given that the letter does not purport to be a statement of reasons provided under statutory compulsion.

9. In this sense for example the inadequacy of material may go to whether the delegate applied the wrong test (as asserted in the applicant’s particular (b)) or was “not in reality” satisfied of the requisite matters (with reference to SZMDS) as asserted in particular (a) to the ground.

10. What then did the delegate say and what were the circumstances in which it was said?

11. Mr Smith referred to annexure “A” to the affidavit of Mr Barsoum. This was said to be a “case dump” of material received by Mr Barsoum from the respondent’s department. The material appears to be information about the applicant and her application and action taken in relation to the processing of that application, as recorded by the Minister’s department.

12. In particular, Mr Smith referred to:

    1)Page 1: a number of items are listed with the date: “04/02/10”, which is the date of the application for the visa. This was put simply to show that the document relates to this application.

    2)Pages 3 to 4: under the heading of “Assessment” the matters to which the delegate had regard (the name at the bottom of the assessment is that of the delegate). The assessment was made on the same day as the date on the delegate’s letter notifying the decision.

    3)Page 4: the following appears at page 4.3:

    “- While speaking to pa on the phone I have noted that she is unaware of the name of the course, the education provide and the starting and ending dates of her courses. Pa’s such unawareness of basic info related to her studies raises strong doubts as per pa’s genuiness.”

    [Errors in the original.]

    4)Page 4: the following at page 4.7:

    “All the above raised strong doubts regarding pa’s genuineness. I found the possibility for her seeking PR [Permanent Residence] or full-time employment onshore is high. Consequently, I am not satisfied that pa meets the ‘other relevant matter’ criterion.”

13. Mr Smith asked the Court to find that these notes were made on the same day as the letter and are evidence of the decision maker’s state of mind as at, or on or about the time of, the making of the decision to refuse the application for the visa.

14. Mr Poynder’s response is that the matters set out under the heading of “Assessment” are not part of the “decision record”. That “record” is the delegate’s letter.

15. Subclause 573.223(2)(a)(ii) requires the decision maker to have regard to the applicant’s stated intention to comply with any conditions subject to which the visa is granted (“A”) and to any other relevant matter (“B”).

16. The argument continues that when regard is had to the letter there is no explicit reference to “A” other than in setting it out as part of the relevant criteria, only to “B”. Therefore, on any plain reading of the letter, the delegate failed to have regard to one of the requirements for the grant of the visa.

17. The applicant’s argument that the delegate’s letter is a decision record and that as the decision record it stands alone as to understanding the decision maker’s reasons for decision (and relevantly to what the decision maker had regard) must be rejected.

18. First, even in situations involving decision records by the Migration Tribunals (which are statutorily required) regard can be had to any other relevant documents to discern meaning in the decision record. Such regard often occurs.

19. Second, the authorities referred to above, even those that say that reasons provided voluntarily may be “scrutinised” in the same manner as reasons provided pursuant to a statutory obligation, do not stand for any proposition that such consideration excludes any other relevant documents which may assist in discerning any meaning.

20. Ultimately, it is a matter for this Court in conducting the review initiated by the applicant now to determine whether all of the delegate’s reasons, all of her analysis and consideration, is contained in the letter. A letter which, it must be remembered, does not purport to be a statement of reasons, but rather a notification to the applicant that a decision was made on the application.

    “… I am writing to advise about your application which was lodged on 04 February 2010. On 03 May 2010, a decision was taken to refuse the grant of this visa.”

21. The question posed at [55] above can only be answered with reference to the particular circumstances of this case. As was said in Khadgi at [71]:

    “The question of whether or not a decision-maker has had regard to all mandatory criteria is a question of fact. That question will usually have to be determined by the Court undertaking a close analysis of the decision-maker’s reasons without the benefit of other evidence, for example, from the decision-maker. As the Full Court said in SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]:

    ... However, the appellants are obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the Police letter. It is necessary for the appellants to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw that inference; that is, the appellants must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Police letter.”

22. None of the authorities relied on by the applicant now support the proposition that, in answering the question as to whether this decision maker had regard to all of the mandatory criteria, regard can only be had to the decision record. Noting that in the current case the letter does not purport to be a decision record, but rather a notification that a decision was taken.

23. In this very real sense, the “Assessment” must be seen as a part of the delegate’s relevant consideration of the question she was required to answer.

24. To limit the Court’s inquiry as to whether the delegate had regard to all of the matters to which she should have had regard to the notification letter only would be to adopt “an overly-stringent approach” to the determination of the question I am required to answer (with reference to Khadgi at [77]).

25. Therefore, I accept that the “Assessment” contained in the “case dump” of the relevant electronic records not only represents evidence of the decision maker’s state of mind as at the time contemporaneous to the making of the decision, but also includes findings of fact relevantly made by the delegate relevant to the disposition of the application. For example, the express finding that the financial statement provided in support of the applicant’s proposed financial support in Australia was “implausible”.

26. I accept Mr Smith’s submission that at the relevant time the decision maker was focussed on the question of the “genuineness” of the applicant’s motives in relation to applying for this particular student visa.

27. Mr Poynder says that the letter makes no reference to “A”, therefore the delegate did not have regard to a mandatory criterion for the granting of the visa. Namely, that she did not take into account the applicant’s stated intention to comply with any conditions subject to which the visa is granted. He referred the Court to the application for the visa and in particular that part of the “Declaration” signed by the applicant which made reference to “conditions” (CB 19).

28. There are two such references. The first (CB 19.3) is in the following terms:

    “If granted a visa, I acknowledge that I am required to abide by its conditions as outlined in the information form 1160i Applying for a student visa.”

29. The relevant “form” was not put before the Court in evidence. There is nothing before the Court to show what these conditions may be, or even, given the “pro forma” nature of the Declaration, whether all of the conditions outlined apply in this case. This remains unknown.

30. The second (CB 19.6), is in the following terms:

    “I acknowledge that I understand that if the 8534 visa condition is imposed on my visa, it will be indicated by the condition code ‘8534’ and by the short description ‘No Further Stay’. I acknowledge that this means that the 8534 condition has been imposed on my visa and that I will not, while in Australia, be entitled to the grant of any other visa, apart from:

    - a further student visa with permission to work, the application for which was made on form 157P; or

    -a subclass 497 (Graduate-Skilled) visa.”

31. In this regard the situation is somewhat clearer. Condition 8534 is found at Sch.8 to the Regulations. There is nothing in any of the material before the Court (let alone in what Mr Poynder says is the decision record) to indicate that this was, or would be, a condition subject to which the visa was to be granted.

32. “A” is clear. The stated intention of the applicant as is referred to in cl.573.223(2)(a)(ii)(A) is to comply “with any conditions subject to which the visa is granted…” (emphasis added). The Declaration is stated to be conditional: (“if the 8534 visa condition is imposed…” (emphasis added). In the absence of any relevant evidence it cannot be said there was any intention to impose this condition. Therefore, the issue as to the applicant’s stated intention is not relevant to the disposition of the application.

33. In different ways both parties emphasised that the answer to the question for the Court was to be found in any event in the terms of the letter itself, and the contrasting ways in which it was said it should be read.

34. The parties, particularly the applicant, placed some emphasis on the history and development of subcl.573.223, its various iterations and the attendant parts of the Regulations. For example, what was said to be relevant found in Sch.5A. But the answer to the current question for the Court is to be found in the requirements of cl.573.223(2)(a)(ii) when read as a whole, not just focusing on the separate parts “A” and “B”.

35. The nature of the regulatory test that the delegate was required to address and answer was whether she, as the Minister’s delegate, could be satisfied that the applicant was: “… a genuine applicant for entry and stay as a student…”. That relevant part of the regulatory criteria itself gives the answer as to how that question is to be answered. It is to be answered by having regard to the matters set out at “A” and “B”.

36. The history of the legislating development of this subclause to which both sides referred, supports what in my view is the very clear statutory intent expressed in the language of cl.573.223(2)(a)(ii) as a whole, and in context of what is around it.

37. A distinction can be drawn between the test to be applied and the matters which will inform whether the decision maker can reach the requisite level of relevant satisfaction. “A” and “B” are the exclusive matters, the parameters if you like, as to how the decision maker may reach the requisite level of satisfaction, or not reach it as the case may be.

38. For example, if the decision maker were to have regard to any matter other than “A” and “B” (noting that in practice “any other relevant matter” may make this difficult) then such a consideration would not be permissible in relation to the relevant test.

39. The nature of the exercise of the regulatory test therefore is whether the delegate can be satisfied that the applicant is a “genuine applicant”. Consideration is limited to those matters in “A” and “B”. These are the elements of the disposition or the application of the test. To reach the level of requisite satisfaction as to genuineness the delegate is limited to having regard to both “A” and “B”. But given the conjunctive “and”, the delegate must have regard to both.

40. In this context, what is therefore relevantly contained in the delegate’s letter? The letter makes clear reference that to be granted the visa the applicant must meet the criteria in cl.573.223. Aside from (iii), all the other relevant criteria are set out in the letter.

41. “(B) any other relevant matter” is set out in bold, in contrast to the remainder of cl.573.223. Mr Poynder’s argument was that this supports the inference that the delegate only had regard to “B”, not to “A”, or for that matter to other parts of the criteria.

42. The letter sets out a number of factors (CB 60.1) which Mr Poynder submitted, with reference to the relevant parts of PAM 3, all relate to “B”.

43. The delegate’s reasoning is found in CB 60.3:

    “After considering all of the information that you have provided in relation to your application, I am not satisfied that you meet the above mentioned criteria. In particular, considerable weight has been given to your personal and economic situation and your overall plan to study the course proposed against your personal circumstances and general incentive to return to your home country. These factors raise significant concerns that cause me to find that, on the balance of probabilities. I am not satisfied that your primary purpose for obtaining a student visa is to study in Australia. Consequently, I am not satisfied that you meet the requirements of clause 573.223(2)(a)(ii)(B).”

44. Mr Poynder submits that the first sentence is of the type of formulaic “catch all” phraseology that does not reveal that the delegate “had regard” to all the other criteria. I understood this argument to be put in the sense that there was no “genuine” consideration in the sense as explained in Ticker and Others v Chapman and Others (1995) 57 FCR 451 at 462 per Black CJ.

45. According to the applicant the only thing which engaged the delegate’s consideration was “B”. She should at least have had regard to “A”. She did not. Error is revealed.

46. I do not agree. The principles referred to above as to how decision records should be read (taking the applicant’s complaint in this regard at its highest) do not reveal any such error.

47. First, it is no doubt clear that the delegate gave great weight to factors that relate to “B”. In fact, the delegate says “considerable weight” was given to those factors (CB 60.4). However the weight to be accorded to these factors is for the delegate to determine (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 per Mason J). There is nothing in the relevant part of the statute or otherwise to say that certain weight should be given to any of the relevant factors.

48. Second, Mr Poynder’s argument that the relevant part of the letter referred to advice (at [76]) was formulaic and did not reveal consideration of any other criterion apart from “B”, which is also in bold emphasis elsewhere in the letter, is not made out when regard is had to all the circumstances of the application.

49. It is clear that, in the absence of anything other than mere assertion to the contrary, the delegate’s words must be read on their face. The delegate was plainly focussed on the question as to whether the applicant was “genuine”. In this the delegate plainly saw that the set of factors going to the applicant’s personal and economic situation, her overall plan to study the proposed course, when set against her personal circumstances and incentive to return to Egypt, were such that on the balance of probabilities led the delegate to find that the applicant was not genuine in the purpose relevant to the student visa.

1. That the elements going to the “any other relevant matter” was the crucial set of factors fundamental to the disposition of the question to be answered, and that the express statement and specific emphasis on this in the letter, as compared to a more general expression of other criteria, does not mean that the delegate did not have regard to other criteria, and in particular to “A”.

2. In my view, the delegate’s letter can properly be read in context as having regard to, and inclusive of some consideration of, the other relevant criteria, but plainly emphasised in the letter the criterion (“B”) which was the fundamental and central reason for the refusal of the visa.

3. I agree with Mr Smith that when the letter is properly read in context and in light of the relevant test (“genuine applicant”) no failure to have regard to the matters in “A” can be said to be made out. What must be borne in mind is that the matter at “A” is the applicant’s stated intention to comply with any visa conditions imposed in relation to the visa grant.

4. As referred to above, there is nothing to show that the one specified condition referred to in the Declaration (Condition 8534) ever became an issue or was actually contemplated as being applied to any potential visa grant in this case.

5. Plainly that condition is directed to a situation where it is felt appropriate to apply some limitation on a student visa holder’s capacity to apply for another visa after arrival in Australia. In the current circumstances that was never at issue. There is no evidence the contemplation of the imposition of such a condition was ever engaged in this case.

6. In these circumstances therefore it is not surprising that the delegate’s letter did not make any specific reference to the applicant’s stated intention in this regard. The delegate was: “entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case…” (Khadgi at [59]). The delegate’s reference to having considered all the information provided by the applicant (which plainly must include the Declaration in the application) is of sufficient reference not to allow the inference that no regard was has to this matter.

7. In relation to the stated intention as to the other set of conditions, while these were generally referred to there is no evidence put before the Court to ascertain exactly what they may have been. In the absence of any evidence to the contrary, therefore, the Court can only proceed on the basis that these conditions (whatever they may have been) did not become at issue, or more precisely were not engaged, in the consideration of the application.

8. The delegate’s letter therefore made appropriate general reference to the other criteria which at least must have included a reference to the matter at “A”. But in the circumstances, given the nature of what is set out at “A” and the circumstances of this case, it is difficult to see what further specific expression to the matter at “A” the delegate’s letter could have made.

9. Any criticism about the failure to refer to the applicant’s “stated intention” in the circumstances must also be seen in the category of the delegate being under no obligation to refer to every piece of evidence before it (WAEE).

10. Ultimately, the delegate’s letter does not purport to be a comprehensive decision record. It is a letter that could have stopped with the first sentence. But even if it were to be seen as a decision record in the sense of one given under compulsion, then in all the circumstances, and when understood in the relevant statutory context, the letter adequately conveyed to Ms Khilile why she was unsuccessful in her application for a student visa.

11. I am not able in all the circumstances to draw the inference urged by Mr Poynder that the delegate did not have regard to the matters she was required to consider in reaching the conclusion that the applicant was a “genuine applicant” for entry and stay in Australian as a student.

12. Particular (a) to the ground therefore does not succeed.

13. Particular (b) asserts that the delegate failed to ask the correct question, namely whether the applicant was “a genuine applicant for entry and stay as a student”. The assertion is that the delegate asked an incorrect question, namely whether the applicant’s: “primary purpose for obtaining a visa is to study in Australia.” This obviously was with reference to what the letter said at CB 60.4. (See [6] and [78] above.)

14. Mr Poynder’s argument is that what appears in this part of the letter is more than just “looseness in the language” or “unhappy phrasing” (with reference to Wu Shan Liang citing Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 286-287). In short, the argument is that a person’s primary purpose in obtaining the visa may indeed not be to study in Australia, in the sense that there may be a greater purpose, but still be able to be a genuine applicant for a student visa.

15. I should just note that the relevant test does not place the emphasis on being a genuine applicant for a student visa, but rather a genuine applicant for entry and stay in Australia as a student.

16. This distinction is not just splitting verbal hairs. It provides the partial answer to the applicant’s attack now.

17. The focus of the test is not necessarily on the applicant as at time of application or decision: “a genuine applicant”. But rather it requires some analysis having regard to the range of factors set out in cl.573.223 as to the reasonable foreseeability of the applicant’s “genuineness” as a student at a time after the grant of the visa, namely at entry, and then stay in Australia. In this regard, therefore, the delegate’s focus in this case on “purpose” after arrival in Australia is quite consistent with the test.

18. The applicant’s complaint though is with the delegate’s use of the word “primary”. There it must be said I disagree with Mr Poynder. The emphasis on this word to raise the argument in this particular is in my view an example of what Wu Shan Liang cautions against.

19. Again, as Mr Smith submits, the delegate’s letter must be read in context. The test requires, having regard to certain matters, the decision maker to reach a view as to the applicant’s intention as to why they wish to enter and remain in Australia. If that is as a student, then the applicant would be a “genuine applicant”. If it is for another purpose, then the applicant would not be a “genuine applicant”.

20. In this context the delegate’s reasoning, which must also be informed by the “Assessment” made at the relevant time, is that the applicant was unaware of the name of her course and was unaware of other “basic” information relating to her proposed course of study.

21. Further, the applicant was found to have limited employment opportunities in a country that suffered from “very poor economic circumstances” and “where the incidence of sectarian disruption and violence are widely reported”. Her inability to support herself financially while in Australia during the proposed period of study was seen as a factor raising serious doubts about her own financial and economic circumstances in a country already described as having limited opportunities for her.

22. The delegate also saw the financial arrangements proposed to support her financially while in Australia as being “implausible”. This was said to be because it was “unreasonable” for a “family friend” to spend such a large amount of money in during so. (Mr Poynder submitted that he did not rely on the fact that Mr Barsoum was Ms Khilile’s uncle, because what was set out in the “Assessment” were “musings”.)

23. I do not agree that the material in the “case dump”, and in particular that part headed “Assessment”, are merely musings. The applicant’s legal representatives put this material before the Court. It was obtained from the Minister’s department. In all the circumstances, I am satisfied that what is set out there represents, at worst in part, the relevant consideration of the delegate in relation to the decision made.

24. What the Court is required to consider in this case is not a statement of reasons whose structure and content is mandated by statute. The letter of notification of the decision must in the circumstances be read with reference to what it plainly says on its face, and in the circumstances, and the context in which it was created, and which help to inform as to meaning. The delegate’s contemporaneous assessment is surely relevant in this.

25. When the letter is read with the assessment what becomes clear is that the word “primary” (as in “primary purpose”) is a loose or infelicitous expression which, on the relevant authorities, should not be relied upon to reveal error.

26. In all the circumstances, what the delegate was seeking to convey was that the applicant’s real motivation in coming and staying in Australia was not to study, but to seek to live here in a better financial, economic, employment, and relatively secure environment. That is, that her intention was to enter and stay in Australia for that purpose. In this regard, she was therefore not “a genuine applicant” for entry and stay in Australia as a student.

27. In other words, the delegate did apply the correct test to the resolution of this application. Particular (b) is not made out.

Conclusion

1. The applicant’s ground put forward and argued with the benefit of counsel is not made out. No error is revealed on the part of the delegate. In the circumstances the application is to be dismissed.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  17 December 2010