KUMAR v Minister for Immigration
[2019] FCCA 2584
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2584 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – Ministerial Direction No.53 – whether the Tribunal was obliged to consider all factors specified in Direction No.53 – whether the Tribunal acted unreasonably or irrationally in considering the Applicant’s personal ties to his home country – whether the Tribunal lacked evidence to support the finding that the Applicant intends to bring his wife and child to Australia – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958, s.499 |
| Cases cited: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 Goyal v Minister for Immigration and Border Protection [2019] FCA 170 Singh v Minister for Immigration and Border Protection [2018] FCCA 3423 Singh v Minister for Immigration and Border Protection [2019] FCA 428 |
| Applicant: | NAVEEN KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number | MLG 2554 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 2 September 2019 |
| Date of Last Submission: | 2 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bayly |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the Respondents: | Mr Barrington |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The Application filed on 25 November 2016 and amended on 7 August 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2554 of 2016
| NAVEEN KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 7 November 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Student (Temporary) (Class TU) visa (‘visa’).
The Applicant filed an Amended Application on 7 August 2019 (‘Application’). No opposition was received in relation to the receipt of this document.
The matter was heard by me on 2 September 2019. For the reasons that follow, I have determined to dismiss the Application.
Background
The background to the matter was conveniently summarised in paragraphs [2] to [20] of the written submissions filed by the First Respondent. The Applicant agreed with that summary. I therefore adopt it (with minor grammatical modifications where necessary) and set it out below.
The Applicant is a citizen of India and was born there on 19 March 1987 (CB 1).
On 14 April 2015, the Applicant applied for the visa (CB 21). On 13 May 2015, the Applicant’s representative provided the Department with a range of supporting documentation, including a letter in relation to the Genuine Temporary Entrant criterion, affidavit evidence from his father and his marriage certificate (CB 25-38).
On 27 May 2015, the delegate refused to grant the Applicant the visa (CB 40). The delegate was not satisfied that the Applicant was a genuine temporary entrant as required by clause 572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (‘Regulations’) (CB 44-50). The delegate found the Applicant also did not meet the criteria for the other subclasses of student visas (CB 50).
On 10 June 2015, the Applicant applied to the Tribunal for a review of the delegate’s decision (CB 51-52). His review application attached a copy of his passport, the delegate’s decision record and the Departmental refusal notification (CB 52). He also appointed a registered migration agent to represent and assist him in connection with that review (CB 52).
By letter dated 26 August 2015, the Tribunal invited the Applicant to attend a hearing scheduled before it on 14 September 2016 (CB 60-63). The invitation enclosed a copy of Ministerial Direction No. 53 (‘Direction 53’) made under section 499 of the Migration Act 1958 (‘Act’). The invitation was sent by email to the Applicant’s appointed representative (CB 59).
The Applicant did not respond to the invitation or provide any additional evidence to the Tribunal prior to the hearing but did attend the hearing on 14 September 2016 (CB 64).
On 7 November 2016, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa on the basis that the Applicant did not meet the requirements of clause 572.223(1)(a) of Schedule 2 of the Regulations, which required the Tribunal to be satisfied that the Applicant was a genuine temporary entrant.
The Tribunal accepted that the Applicant had, and continued to have, incentives to cease residence in Australia; that he had acceptable reasons why he had chosen to study in Australia; had a spouse, young child and both parents living outside Australia; and had no close family in Australia (CB 75).
The Tribunal considered the Applicant’s proposed plan to open one or more hospitality businesses in India for which he or his family already possess the land and building structures (CB 75). The Tribunal determined that the Applicant already possessed more than sufficient skills, knowledge and qualifications objectively necessary to embark upon this stated career ambition (CB 75).
In arriving at this conclusion, the Tribunal referred to evidence of the Applicant’s qualifications already gained in Australia, including six Australian Vocational and Education Training (‘VET’) sector qualifications and the Applicant’s bachelor level university qualification obtained in India (CB 75).
The Tribunal found it concerning that the Applicant would spend eight years studying trade qualifications at VET level when he had already completed a higher-level university degree in India (CB 76). The Tribunal was not convinced that the Applicant needed to undertake further study to build sufficient personal confidence and found his studies in marketing and the proposed study in project management were superfluous to his stated career ambitions (CB 76).
The Tribunal found that the Applicant ‘had a very definite choice’ to return to India when his previous student visa expired in 2015, as he had ‘more than sufficient skills, knowledge and qualifications’ to pursue his stated plan there (CB 76). The Tribunal considered that, notwithstanding the incentives it found the Applicant may have had to return to India, he had not done so and had instead embarked upon yet another VET sector course of study in Australia.
On the basis of the Applicant’s circumstances, immigration history and other matters it considered relevant, the Tribunal was not satisfied that the Applicant genuinely intended to stay in Australia temporarily (CB 77). Accordingly, the Tribunal found that the Applicant did not meet clause 572.223(1)(a) of Schedule 2 of the Regulations and affirmed the decision under review (CB 77).
The Tribunal also found that the Applicant did not meet the criteria for the other Class TU visa subclasses (CB 77).
On 23 April 2019, the matter was listed before me for hearing. The Applicant did not attend. I made Orders dismissing the Applicant’s application for judicial review on the basis of non-appearance.
On 21 May 2019, the Applicant filed an application in a case seeking orders, amongst others, that set aside the Orders made on 23 April 2019. The Applicant filed an affidavit in support annexing a proposed amended application.
On 24 May 2019, Orders were made by consent which, amongst other things, dismissed the Orders of 23 April 2019 and set the matter down for final hearing on 2 September 2019.
On 7 August 2019, the Applicant filed an amended application substantially in the same form as the proposed amended application annexed to the affidavit of the Applicant dated 20 May 2019.
The Minister did not oppose the Applicant’s application for leave to amend.
The Application for Review
Ground 1
The first ground of review in the Application is as follows:
‘The decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to comply with a binding direction issued by the Minister pursuant to s 499 of the Migration Act 1958 (Cth) (Act), being ‘Direction No 53 – Assessing the genuine temporary entrant criterion for Student visa applications’ (Direction No 53).
Particulars
The Tribunal was required to consider and reach a finding upon each of the matters set out in Direction No 53. However, it failed to consider:
a. Economic circumstances of the Applicant that would present as a significant incentive not to return to his home country, which may include consideration of his circumstances relative to the home country and to Australia: [9(c)] of Direction No 53;
b. Military service commitments that would present as a significant incentive for the Applicant not to return to his home country: [9(d)];
c. Political and civil unrest in the Applicant’s home country, including situations of a nature that may induce the Applicant to enter Australia as a student as a way of remaining indefinitely: [9(e)];
d. Remuneration the Applicant could expect to receive in his home country or a third country, compared with Australia, using his qualifications: [12(c)]; and
e. The Applicant’s immigration history, including whether he complied with previous visas and, if he travelled to countries other than Australia, whether he complied with their immigration laws: ([14(a)-(b)].’
The argument advanced by the Applicant under this ground is that in coming to its decision, the Tribunal was required to consider each of the criteria set out in Direction 53. The Applicant submits that Direction 53 prescribes mandatory criteria, each of which must be considered. Further, it is submitted that the absence of evidence going to any one of the mandatory considerations that are set out in Direction 53 will ordinarily militate in favour of the view that an applicant satisfies the relevant criterion.
The First Respondent accepted that the Tribunal in its decision did not expressly refer to the following criteria set out in Direction 53: clauses 9(c) – (e) (dealing with the economic circumstances of the Applicant, military service commitments and political and civil unrest), 12(c) (the remuneration of the Applicant), and 14 (a) – (b) (the Applicant’s immigration history). The First Respondent did not accept however, that the Tribunal failed to consider those matters.
The resolution of this issue turns principally on the interpretation to be given to the criteria set out in Direction 53. In this respect, the Applicant submitted that I ought to follow the decision of Judge Riley of this Court in Singh v Minister for Immigration and Border Protection [2018] FCCA 3423 (‘Singh 2018’). Like this matter, Singh 2018 concerned a decision not to grant an applicant a student temporary subclass 572 visa. Riley J was required to consider and apply Direction 53. Having reviewed the relevant Tribunal decision, Riley J then stated at paragraphs [41] and [42] as follows:
‘41. On any view, that is a very superficial summary of Direction No. 53. It did not include any reference to the matters required to be addressed by item 9(c), among others. In circumstances where the Tribunal’s summary of Direction No. 53 was so superficial, and where, as discussed below, the Tribunal has not considered a number of the matters it was required to consider, it is not possible to infer from the Tribunal’s mention of Direction No. 53 by name and the Tribunal’s claim that it had considered the issues in Direction No. 53 that it was actually aware of the detail of the contents of that direction.
42. As the Tribunal did not find that there were economic circumstances that would present as a significant incentive for the applicant not to return to India, I infer that the Tribunal implicitly found that there were no economic circumstances that presented as a significant incentive for the applicant to return to India. Consequently, the Tribunal should have considered whether to take that matter into account as a factor supporting the applicant’s claim to be a genuine temporary entrant. By failing to do so the Tribunal fell into jurisdictional error.’
It is to be noted that later in the decision, at paragraphs [43] and [44], Riley J dealt with the failure of the Tribunal to consider military service commitments and civil and political unrest. Judge Riley did not accept a submission from the Minister that those matters were of no relevance in the proceeding before her. Riley J found that Direction 53 made those matters relevant.
It is this reasoning from Singh 2018 that led the Applicant in this matter to submit before me, effectively, that each of the matters in Direction 53 need to be dealt with, even if those matters are not placed squarely in issue by reason of the Applicant’s claims or the evidence. Direction 53, it was said, requires that each of the criteria within it be dealt with, irrespective of whether those matters are raised by an applicant or arise from the material.
Finally, the Applicant submitted that the Federal Court of Australia had twice been invited to overrule Singh 2018 and had declined to do so: see Bala v Minister for Immigration and Border Protection [2019] FCA 600 (‘Bala’) at paragraph [14] and Goyal v Minister for Immigration and Border Protection [2019] FCA 170 at paragraph [5].
I have reviewed Singh 2018. A number of other authorities support the proposition that the criteria set out in Direction 53 need only be addressed insofar as those criteria are relevant to particular facts of the application before the decision maker. This was the view adopted by Judge Anthony Kelly of this Court in Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (‘Kaur’) at paragraphs [51] to [55]. It was also the view of Judge McNab of this court in Patel v Minister for Immigration & Anor [2019] FCCA 2436 (‘Patel’).
The proposition that a Tribunal may have regard to matters contained in items [6] to [16] of Direction 53 only insofar as those matters are relevant to the extant application also has some support from the decisions of Justice Bromberg in Singh v Minister for Immigration and Border Protection [2019] FCA 428 (‘Singh 2019’) at paragraph [24]; Justice Anastassiou in Bala at paragraphs [17] and [18]; and Justice Perry in Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 (‘Takhi’) at paragraphs [21] to [22].
I will adopt the analysis in Kaur and Patel concerning the approach to take to Direction 53. I do so also taking into account the comments of Justices of the Federal Court of Australia in Singh 2019, Bala and Tahiki.
Turning to the present matter, the Tribunal clearly recognised the relevance of and had regard to the content of Direction 53. So much is evident from the following matters.
On 26 August 2016, the Tribunal invited the Applicant to attend a hearing before it. In its correspondence, the Tribunal attached a copy of Direction 53 and invited submissions from the Applicant on it.
The Tribunal also expressly discussed the relevance of Direction 53 in its reasons for decision. Notably, this included the following specific references:
a)at paragraph 12(b), the Tribunal stated:
‘12. At hearing, the applicant was:
…
b. Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;’
b)at paragraph 12(d), the Tribunal stated:
‘12. At hearing, the applicant was:
…
d. Given an overview of the considerations laid out in Direction No.53 as summarised above;’
c)at paragraph 12(e), the Tribunal stated:
‘12. At hearing, the applicant was:
…
e. Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;’
The Tribunal also explicitly referenced in paragraphs 13(a) to (e) of its reasons, content that is caught by the relevant criterion in Direction 53, without expressly referencing specific sub paragraphs of Direction 53. Paragraphs 13(a) to (e) of the Tribunal’s reasons are as follows:
‘13. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence, and written material provided by the applicant to the Department and tribunal, the applicant has had, and continues to have, incentive to cease residence in Australia:
a. The applicant had reasonable explanations for why the applicant chose Australia as a study destination, for valuing Australian education and the experiences that brings, and for having made a selection of education providers (written “GTE Statement” received by the Department on 13 May 2015 (GTE statement));
b. The applicant has close family members and friends outside Australia, which as of his marriage in February 2013 in India (“Marriage Registration Certificate”), now includes his wife and daughter born in 2014;
c. The applicant is the only child of his parents and has attendant responsibilities towards his parents and family in Pakistan as well as being ‘heir’ to his family’s property (affidavit of applicant’s father dated 23 April 2015 and “Mutation Register”);
d. The applicant does not have close family members in Australia;
e. The applicant has articulated a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia;’
I consider that it can be observed from the above that:
a)Paragraph 13(a) of the Tribunal’s reasons above deals with content covered by paragraph 9(a) of Direction 53;
b)Paragraph 13(b) of the Tribunal’s reasons above deals with content covered by paragraph 9(b) of Direction 53;
c)Paragraph 13(c) of the Tribunal’s reasons above deals with content covered by paragraph 9(b) of Direction 53 and arguably 9(c) of Direction 53;
d)Paragraph 13(d) of the Tribunal’s reasons above deals with content covered by paragraph 11(a) of Direction 53; and
e)Paragraph 13(e) of the Tribunal’s reasons above deals with content covered by paragraph 11(e) of Direction 53
There was no evidence, argument, or claim made by the Applicant in relation to his economic circumstances, military service commitments, or political and civil unrest (those matters covered by items 9(c) to (e) in Direction 53). Nor was there any claim or evidence concerning the remuneration the Applicant may have been entitled to receive (a matter covered by item 12(c) of Direction 53). The matters concerning an earlier refusal of the visa, compliance with visa laws and travel laws (matters covered by 14(a) – (b) of Direction 53) were also not relevant on the material before the Tribunal.
Having regard to the above, in the present case, I am satisfied that the Tribunal has, without reference to each of the specific items in Direction 53, considered relevant matters required by Direction 53. So much is apparent from what is set out above, and to the extent it is not apparent, I infer from the matters above that the Tribunal did consider the factors required by Direction 53 that were relevant to the claims before it. It is reasonable to infer that the factors not mentioned by the Tribunal were not sufficiently important or germane to its decision to warrant express mention: see Kaur.
Accordingly, the fact that the Tribunal did not expressly refer to each and every part of Direction 53 which were not relevant to the Applicant’s claim does not place the Tribunal into error. As a result, I dismiss ground one of the grounds of review.
Ground 2
The second ground in the Application is as follows:
‘The decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to comply with Direction No 53, or else constructively failed to consider the submissions of the Applicant.
Particulars
The Tribunal accepted the Applicant’s evidence that there were powerful incentives for him to return to India. However, it weighed those matters against the Applicant on the basis that his continued study despite these incentives indicated that he wished to remain indefinitely in Australia, and was using his student visa as a means to do so.
Direction No 53 clearly contemplates that incentives to return after a period of study will militate in favour of the conclusion that an applicant satisfies the genuine temporary entrant criterion. The Tribunal instead used the Applicant’s favourable evidence to reach an adverse conclusion. Its reasons indicate that it either misconstrued the import of the Applicant’s evidence or misconstrued Direction No 53. As a result, the Applicant was deprived of any beneficial weight his evidence may (and ought to) have had.’
This ground of review arises from the reasoning and conclusions of the Tribunal that the Applicant had an array of incentives to return to India, but would not yield to those incentives.
This ground of review raises two principal issues. The first is the proper construction of item 9(b) of Direction 53. The second is the alleged constructive failure by the Tribunal to consider the submissions of the Applicant.
Turning to the first of the matters above. Item 9(b) of Direction 53 is in the following terms:
‘9. In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
…
b. The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country’.
The thrust of the Applicant’s submission is that the Tribunal took the mandatory consideration in item 9(b) of Direction 53 into account in an irrational way. The submission was to the effect that the existence of personal ties to the Applicant’s home country that would serve as an incentive for the Applicant to return to that country cannot rationally produce a conclusion that increases the likelihood that the Applicant intends to remain in Australia other than temporarily.
I have considered this submission carefully. In order to address it, it is first necessary to examine what item 9(b) of Direction 53 requires. To the extent the Applicant submits personal ties must serve and be taken as an incentive to return to the home country, that submission cannot succeed given the language used in item 9(b) of Direction 53. This is because the submission of the Applicant fails to have regard to the express text in item 9(b). Item 9(b) does not require, in terms, the Tribunal to assess an applicant’s personal ties to his or her home country and conclude that those ties must, or necessarily must, serve as an incentive to return. Rather, the question being asked, or issue raised, by item 9(b) is simply ‘whether’ relevant ties would serve as a significant incentive to return to the home country.
The next matter concerns the submission that the Tribunal failed to consider the submissions of the Applicant, and the Tribunal used evidence favourable to the Applicant to reach a conclusion that was adverse to him. This is said to deprive the Applicant of the weight of evidence that is beneficial to him. The focus of the Applicant’s submission in this respect was that having found that the Applicant had every personal and professional reason to cease his residence in Australia, the Tribunal went on to find that the Applicant was likely to remain in Australia.
A review of the Tribunal’s decision discloses that the conclusion that the Applicant was likely to remain in Australia was based on a number of other matters considered by the Tribunal. The chain of reasoning was as follows:
a)At paragraph [17], the Tribunal found the Applicant had ‘strong and distinct incentives’ to return to India by August 2014;
b)At paragraph [23], the Tribunal considered that by August 2014 the Applicant was possessed of the ‘necessary skills, knowledge and qualifications to have sufficient confidence to open one or more restaurants’. The Tribunal went on to record that it found ‘unconvincing’ the Applicant’s claim that he needed to study more in order to build sufficient personal confidence;
c)At paragraph [26], the Tribunal recorded that it suggested to the Applicant that by the time his student visa was to expire in 2015, he had a very definite choice and that he had sufficient skills knowledge and qualifications;
d)At paragraph [27], the Tribunal recorded that despite the obvious incentives for him to return to India, the Applicant proposed a course that the Tribunal found ‘has limited incremental additional value to his future plan when placed next to the array of qualifications he already has’;
e)At paragraph [30], the Tribunal considered that the Applicant’s own conduct in proposing a further course of study of ‘very limited value to his future’ suggests that he would not yield to the incentives placed before him to return to India.
When the above is considered, it is apparent that the Tribunal made findings that there were incentives for the Applicant to return to India. What emerges from the reasoning however, is that despite the existence of the incentives, the Tribunal formed the view that the Applicant intended to stay in Australia. This conclusion was open to the Tribunal on the material before it, which included material as to the courses the Applicant had completed, the length of his stay in Australia, a finding that he had acquired the necessary skills to achieve his ambitions some years earlier, that he had thus far not yielded to incentives to return to India which included the fact his wife and child resided there, and that he had enrolled in a course of limited value to his future plans. Further, there is nothing to suggest the submissions of the Applicant were not considered.
There is nothing unremarkable about the Tribunal’s process of reasoning disclosed above. Contrary to the Applicant’s claims, the findings made by the Tribunal were open to it on the material available, and its chain of reasoning was logical. For this reason, I dismiss ground two of the grounds of review.
Ground 3
The third ground in the Application overlaps to some extent with Ground 2. It is as follows:
‘The Applicant gave evidence that his wife had a postgraduate education and a good position in India and did not wish to relocate to Australia, such that he had an incentive to return. The Tribunal found that the Applicant’s evidence indicated that he intended to bring his wife and child to Australia regardless of his wife’s attitude and circumstances. There was no evidence for that finding, and the Tribunal thereby fell into jurisdictional error.’
This ground of review invites close examination of paragraph [30] of the Tribunal’s decision. That paragraph is in the following terms:
‘His own conduct in proposing further stay to study a course of very limited value to his future suggests that he will not yield to the array of incentives he has to leave Australia, but rather intends to stay on in Australia and intends (regardless of what his wife might intend) to bring his wife and child, now his closest personal connections, onshore at an opportune time’.
In submissions, the Applicant said the following in relation to the finding above. First, that there was no evidentiary basis to support a finding that the Applicant intended to ‘force’ his wife and child to come to Australia. In this respect, the Applicant took me to Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 (‘Splendido’) where Mortimer J concluded that an absence of any evidence to support a finding which is material to the exercise of power is an error that is likely to be jurisdictional in nature. Second, the Applicant submitted that the finding in paragraph [30] was tainted by legal irrationality.
In assessing this ground of review, it is necessary to consider carefully paragraph [30] of the Tribunal’s reasons and whether the Applicant’s characterisation of paragraph [30] that it constitutes a finding the Applicant would force his wife and child to leave India and come to Australia is correct. In my view, the Applicant’s contention that the statement at paragraph [30] of the decision constitutes a finding that the Applicant intended to force his wife and child to come to Australia does not reflect a proper reading of the paragraph. The language of the paragraph is directed at the Applicant’s intention. It notes the wife’s contrary intention. It does not conclude that the Applicant intends to force his wife to come to Australia against her wishes. What is recorded is simply a record of his wishes, and her wishes, which are not in alignment. Alternatively, the language could be taken to mean that the Tribunal did not accept the Applicant’s claim that his wife did not intend to join him in Australia. Whichever view might be preferred, there is nothing in the paragraph that supports the contention that the Tribunal concluded the Applicant would force his wife to come to Australia.
It is important to observe that this ground of review overlaps with, and in some ways is a subset of ground 2. That is, an aspect of the complaint is that the Tribunal did not accept the Applicant’s stated intentions in relation to returning to India. As I have noted above, the Tribunal formed an adverse view in relation to the Applicant and his stated intentions to return to India. Further, as I have already noted above in respect of ground 2, such a conclusion was open to the Tribunal on the evidence. The chain of reasoning, discussed earlier, was not remarkable.
To the extent it might be said that there is no evidence to support the findings in paragraph [30] of the Tribunal’s reasons, I adopt the reasons I have set out earlier in relation to ground 2 above. It was open to the Tribunal to infer and conclude having regard to, among other things, the Applicant’s study history, ambitions in India, the incentives available to him to return to India and his failure to yield to those incentives, that he did not intend to return to India.
It may be accepted that a decision maker who decides a question of fact or draws an inference when there is no evidence in support of the finding or inference makes an error of law. The Minister submits, however, that that ground ‘cuts out when even a skerrick of evidence appears’: see Shop, Distributive and Allied Employees Association v National Retail Association(No.2) (2012) 205 FCR 227 at [31]. For the reasons articulated previously, there is evidence that leaves it open to the Tribunal to reach the conclusion it reached at paragraph [30] of its reasons.
For the above reasons, I dismiss the third ground of review.
In light of my findings above, the Application must be dismissed.
Costs
As noted above, Orders were made on 23 April 2019, dismissing the Application for non-appearance and ordering the Applicant to pay the First Respondent’s costs fixed in the sum of $5,400.
On 24 May 2019, Orders were made in Chambers by consent, providing that, among other things, the Orders of 23 April 2019 be set aside, the Applicant pay the First Respondent’s costs of $1,000 thrown away in preparation of the hearing of 23 April 2019 and each party bear their own costs in relation to the interlocutory application to reinstate the substantive proceedings.
Neither party made submissions with respect to costs at the hearing of
2 September 2019.
On 5 September 2019, Chambers emailed the parties seeking clarification as to the costs sought. Solicitors for the Minister advised that costs of $3,500 were being sought in respect of the interlocutory application, in addition to an amount of $5,400.
I note the orders made by consent on 24 May 2019, which provided that each party is to bear their own costs with respect to costs of the interlocutory application, and I therefore decline to award costs with respect to same.
In light of the above, I will make an order that the Applicant pay the First Respondent’s costs, fixed in the sum of $5,400, in addition to the amount of $1,000 as ordered by consent on 24 May 2019.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 13 September 2019
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