Kumar v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 171

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kumar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 171

File number(s):

SYG 1137 of 2020

Judgment of:

JUDGE LAING

Date of judgment:

18 February 2025

Catchwords:

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider, or give requisite consideration to, evidence that was before it – whether the Tribunal engaged in irrational or illogical reasoning – application dismissed

Legislation:

Migration Act 1958 (Cth) s 499

Migration Regulations 1994 (Cth) Sch 2, cl 457.511 & 572.223

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Singh v Minsterfor Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200

Division:

General

Number of paragraphs:

46

Date of hearing:

21 January 2025

Place:

Sydney

Counsel for the Applicants:

Mr J Sabharwal

Solicitor for the Applicants:

Legal on London

Solicitor for the First Respondent:

Ms K Evans of Sparke Helmore Lawyers

Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 1137 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

RAJESH KUMAR

First Applicant

KUSUM LATA

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	18 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application be 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 LAING:

1. The applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Student (Temporary) (Class TU) visas (student visas).

   BACKGROUND

2. The primary applicant (Applicant) is a citizen of India who arrived in Australia on 26 September 2007. The second applicant is his wife. On 19 May 2015, the applicants applied for the student visas that are the subject of this proceeding. Only the Applicant sought to meet the primary criteria for the visas.

3. On 22 July 2015, the Delegate refused the application. On 11 August 2015, the applicants sought review of the Delegate’s decision by the Tribunal. The Tribunal affirmed the Delegate’s decision on 22 December 2016.

4. On 18 July 2018, orders were made by consent quashing the Tribunal’s decision and remitting the matter to the Tribunal for redetermination according to law.

5. On 20 April 2020, the Tribunal (differently constituted) affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

6. The Tribunal summarised the background to the matter, the criterion in issue and the evidence before it at [1]-[33] of its decision.

7. The Tribunal identified the issue before it as whether cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was met by the Applicant. That provision was relevantly set out at [35] of the Tribunal’s decision as follows:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)        the applicant’s circumstances; and

   (ii)       the applicant’s immigration history; and

   (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)      any other relevant matter; and

   (b)…

8. The Tribunal observed (at [36]) that in considering whether the criterion was met, the Tribunal was required to have regard to Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications (Direction No. 53), which was made under s 499 of the Migration Act 1958 (Cth). This required the Tribunal to have regard to a number of specified factors relating to:

   (a)the Applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to the Applicant’s future;

   (b)the Applicant’s immigration history; and

   (c)any other relevant information

9. The Tribunal accepted that the Applicant’s father was employed in the agricultural sector and that the presence of his family indicated ongoing personal ties to India. The Tribunal accepted that there was no evidence of military service commitments that would present a significant incentive for the Applicant not to return to his home country, or evidence of political or civil unrest affecting him. The Tribunal was not satisfied, however, that the Applicant’s family ties served as a significant incentive for him to return to his home country (at [38]).

10. Having regard to the applicants’ economic circumstances and circumstances in Australia, the Tribunal found that the applicants had developed ties with Australia that would present as a strong incentive to remain (at [39]-[41]). As this reasoning is the subject of challenge, it is considered further below.

11. The Tribunal considered the value of the course to the Applicant’s future at [42]-[43], before reasoning at [44]-[46]:

    44.Having assessed the written statements and the applicant’s evidence overall, the Tribunal finds that while the applicant has provided a lot of information, none of it clearly articulates how a Bachelor of Business (Professional Accounting) is to be applied to a farming/agricultural trading business such as the applicant’s father operates in India including what the applicant’s role will be or what level of remuneration he expects. Based on submissions to the Tribunal such as an Indian government report on Indian agriculture in 2015-16, the identification of major produce markets in the applicant’s home state and news reports about the Indian agricultural market the Tribunal considers the applicant has been attempting in his written evidence to display a detailed level of knowledge and concern about the agricultural industry in India while conversely seeking to extend his stay in Australia as long as possible. The Tribunal finds the applicant’s generalised statements such as the following from his November 2016 submission: “… I tried the best to highlight my vision to build my career with a true intension to start a effort to kill poverty and hunger from this world…” to be particularly disingenuous.

    45.The Tribunal is not satisfied a Bachelor of Business (Professional Accounting) is consistent with the applicant’s previous studies or that it follows logically from qualifications in baking and cooking. The applicant initially studied business related courses at the Diploma level, up to an Advanced Diploma but then regressed to study Certificate III courses in baking and cooking. He has only returned to the field of business in 2019 when he enrolled in a Bachelor of Business. Having reviewed his numerous written statements and oral evidence, the Tribunal finds the applicant has tailored his account of his career plans to suit the course he is studying at any given time. This has included opening a bakery or food related business, working in marketing of agricultural products and employment generally with his father’s agricultural business. At the same time, very little of his work history is relevant or applicable to working in the farming or agri-business sector.

    46.The applicant’s immigration history includes both visa and study history. It indicates the applicant arrived in Australia on 26 September 2007 as the holder of a Subclass 573 student visa. He has returned to his home country four times; in 2008, 2010/11; 2013 and 2013/14. As of the date of the hearing the applicant has been a temporary resident in Australia for 12 years. He is planning to remain in Australia at least until 11 September 2022 which would take his temporary residency to nearly 15 years. Since his arrival the applicant has held two 573 visas, a Subclass 572 and a Subclass 485 post study work visa. While in Australia the applicant has also applied for a Subclass 186 employer nominated visa and a Subclass 457 temporary work visa. The Tribunal finds the applicant’s length of time in Australia and his applications for other Australian temporary and permanent visas weigh against him in assessing whether the applicants are genuine temporary entrants for study.

12. The Tribunal observed that there was no evidence indicating that the Applicant had travelled to countries other than Australia or his compliance with immigration laws of other countries (at [47]). At [49], the Tribunal reasoned:

    49.The applicant is currently enrolled in a Bachelor of Business (Professional Accounting) that is due to be completed on 11 September 2022. Prior to then the applicant had only completed courses at the vocational level despite having completed the related course of Advanced Diploma of Business in 2009. Considering the amount of time the applicant has spent in Australia undertaking relatively short, inexpensive courses of study, the Tribunal finds the Student visa is being used primarily for maintaining ongoing residence. The Tribunal considered the representative’s submission dated 1 October 2019 that claims the applicant meets the criteria for the grant of a Student against the evidence in support but is not satisfied the applicant is a genuine temporary entrant for study.

13. The Tribunal observed that it had declined to rely upon an allegation received by the Department that the Applicant was not a genuine student because he and his wife were working full-time. However, the Tribunal did consider a concession by the Applicant that he had worked in breach of visa conditions. The Tribunal did not accept the Applicant’s explanation that he had not known that he was working in breach of conditions and placed limited weight upon his representative’s submission that he intended to comply with his visa conditions in the future. The Tribunal considered that the second applicant had also provided false information regarding her employment status in seeking to minimise her employment ties to Australia. The Tribunal did not consider that the Applicant had adequately explained certain transactions in his financial records and was therefore not satisfied that the Applicant had been “completely honest” regarding his sources of income in Australia (at [50]-[55]).

14. The Tribunal concluded at [56]-[57]:

    56.The Tribunal has considered the evidence individually and cumulatively including the applicants’ evidence at the hearing and all written submissions provided to the Department, to the Tribunal at the first hearing and to the Tribunal after remittal from the Federal Circuit Court. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant.

    57.On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

15. Having regard to the above, the Tribunal concluded that the applicants were unable to meet the criteria for the visas and affirmed the Delegate’s decision (at [58]-[61]).

    APPLICATION FOR REVIEW

16. The applicants commenced the current proceeding through an application filed on 13 May 2020. The matter remained in the central migration docket for some years, before being docketed to me and listed for hearing. The applicants ultimately relied upon an amended application filed on 18 February 2021 containing the following grounds:

    i.One reason the Tribunal found that the applicant was not a "genuine applicant for entry and stay as a student" was because (at [20]) "the applicant has not progressed academically as would be expected of a person whose focus in Australia should be their education" and had only completed a few short courses in the 12 years he had been in Australia. The applicant explained to the Tribunal that following the refusal of the student visa in July 2015, he could not continue to be enrolled in a course of study in Australia. The Tribunal failed to have regard to, or failed to give proper and genuine consideration, to this explanation, together with the fact that one visa held by the applicant for 18 months in this period was a graduate visa, in a manner which involved jurisdictional error.

    ii.Direction No 53 required the Tribunal to have regard to the applicant's immigration history in deciding whether he was a genuine applicant for entry and stay as a student. The Tribunal found (at [46]) that the applicant's applications for various visas in Australia, including a subclass 485 visa, "weigh against him in assessing whether the applicants are genuine temporary entrants for study". The applicant explained to the Tribunal that in 2013, although he had an opportunity to apply for a subclass 457 visa (which would have permitted him to remain in Australia for 4 years), he applied for and obtained a subclass 485 visa because it was better aligned better with his medium term plans to return to India. The Tribunal failed to have regard to, or failed to give proper and genuine consideration, to this explanation in a manner which involved jurisdictional error.

    iii.The Tribunal found at [41] that "the applicants have developed ties with Australia which would present as a strong incentive to remain in Australia". The Tribunal fell into jurisdictional error in making this finding.

    Ground 1

17. Ground 1 contended that the Tribunal failed to consider the Applicant’s explanation that he could not continue to be enrolled following the refusal of the student visas in July 2015, together with the fact that one visa held by the Applicant for 18 months was a graduate visa. The applicants observed that Direction No. 53 required the decision maker “to have regard” to specified factors, including “any other relevant information provided by the applicant”. The information in question was said to have been such information.

18. In support of this ground, the applicants relied upon a number of authorities including Singh v Minsterfor Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200, in which it was stated at [30]-[37] (per Reeves, O’Callaghan and Thawley JJ):

    30.If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ…

    …

    36.The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

    37.In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

    (1)First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

    (2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

    (a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];

    (b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal.  The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

    (c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

19. The applicants submitted that the Applicant had explained to the Tribunal that, following the refusal of the student visa in July 2015, he could not (or at least he was told by education providers and believed that he could not) continue to be enrolled in a course of study in Australia. This included:

    (a)in a written statement (at CB 423):

    6.Therefore at this time of 2015, I decided to gain marketing skill, enroll in course, applicant for student visa, unfortunately refused. After the student visa was refused, I went to my college where I was enrolled and talked to them to keep my study continue, but they said me that I can’t continue with them as I do not have a student visa. That was a shock for me…

    7.On the other hand my effort was still continue to get the student visa to be allowed to study further. Unfortunately in 2016 I couldnt win in AAT. Still I did not quit the hope and applied to FCC to get a chance for further study. The Immigration lawyer… who was helping me in AAT hearing and applying further in FCC didnt give me the right direction to apply in FCC within 28 days after AAT decision, just unknowingly I applied it on 33rd day bacause of that Immigration gave me bridging visa E, with no study rights…

    (b)at [19] and [24] of its decision, the Tribunal recorded the following evidence given at hearing:

    19.At the time of applying for the visa the applicant was enrolled in a Diploma of Marketing. When asked if he completed the course, he said he informed the college his visa was refused and was then unable to continue. The applicant said he was enrolled to study in Perth but could not remember the name of the provider. He said he attended for two or three weeks before receiving the Department’s decision…

    24.… The applicant said he was motivated to do so when he was the regional manager for Caltex. He said after the last Tribunal hearing he was able to get a Bridging visa A allowing him to study but because of a delay in applying to the Federal Circuit Court, he was given a Bridging visa E that does not allow him to work or study. The applicant said he was granted the BVE in early 2017 and he still has it. When asked how he supports himself the applicant said through friends. He confirmed his wife was not able to work either but said in April 2019 he was granted work rights. The applicant said he was told he could only enrol to study a short course. The applicant said he is now working for Uber.

    (c)in a post-hearing statement (CB 449), the Applicant said:

    1.I attended my classes for 2 to 3 weeks for the course, Diploma Of Marketing (start date 15/6/2015) in Subiaco, WA. I was refused by the college to keep continue my study once they came to know that my student visa has been refused by Department Of Immigration.

1. I am not persuaded that there is sufficient basis on the evidence before the Court for drawing an inference that the Tribunal did not consider the evidence in question, in the requisite sense. The Tribunal directly referred to evidence in this regard at [19] and [24] of its decision. The Tribunal referred to the visas held by the Applicant, including the applicant’s “post study work visa”, at [46].

2. The Tribunal’s reasoning at [34]-[61] was not inconsistent with this evidence. However, the Tribunal concluded that it was not satisfied that the Applicant’s visa and study history indicated that he was a genuine temporary entrant. There is insufficient reason for doubting that, in referencing the Applicant’s visa and study history at [46]-[49], the Tribunal overlooked the Applicant’s evidence regarding his bridging visa and difficulties in enrolling that it had expressly acknowledged earlier in its decision.

3. I accept that reference to this evidence was not repeated in [46]-[49]. However, as the Minister submitted, the Tribunal’s concern at [46]-[49] appears to have been not so much that there were gaps in the Applicant’s study periods, but rather the lack of academic progression that he had made, in the times he was studying, over the course of the student visas that he had held since arriving in Australia in 2007. In particular, the Tribunal was concerned that the Applicant had been undertaking “relatively short, inexpensive courses of study” and that this indicated he was using the student visa program “primarily for maintaining ongoing residence” (at [49]).

4. In the above circumstances, I am not persuaded that the Tribunal failed to consider (in the requisite sense) the Applicant’s evidence that he had experienced difficulties in enrolling after being granted a Bridging Visa E (BVE). Rather, the Tribunal appears to have not given particular weight to this evidence. This was in circumstances where, as the Tribunal observed at [24], the Applicant had been able to enrol in a course shortly before the Tribunal hearing in 2019 (despite stating that he was still on the Bridging Visa E). It was in circumstances where the Tribunal’s focus appears to have been upon the nature of the Applicant’s academic progression (or lack thereof) through the courses he had studied, rather than any particular period of gap in his study.

5. I am therefore not persuaded that ground 1 is able to succeed.

   Ground 2

6. Ground 2 contended that the Tribunal failed to consider, or give proper and genuine consideration to, the Applicant’s explanation that he applied for a subclass 485 (rather than a subclass 457) visa in 2013 because it was better aligned with his medium-term plans of returning to India.

7. The applicants relied upon evidence the Applicant had given at CB 422. They observed that, after explaining that he had applied for a subclass 485 visa (“so that I could stay in Australia for a short time and gain commercial cookery skill”), which was refused, the Applicant stated that he had applied for merits review and continued:

   3.        … Again in 2013 a food business offered me a job to work at 457 visa.

   4.On the hand I won in MRT for this 485 visa. At this stage i again had the choice to continue my 457 visa and a chance to be stable in Australia. For millions of people from around the world this is a dream to... 457 sponsorship to live permanently in Australia... But… my dreams are big to do some business in India... So second time again I said no to the option to be permanent in Australia and chose 485. to understand more the world of business.

8. At [17] of its decision, the Tribunal described evidence given by the applicant at hearing as follows:

   17.The applicant said the agent told him he could apply for a Subclass 485 visa. However, he said the paperwork could not be submitted on time and the visa was refused. The applicant then sought a review of the decision before the Tribunal. He said he was able to work and study while on a Bridging visa and he studied another Certificate III course to expand his knowledge of cookery. He said it was then suggested by an agent that he apply for a Subclass 457 visa because of his background which was sponsored by a restaurant. In late 2013 the applicant said his agent asked if he wanted a 457 or 485 because he could only be granted one and he accepted the Subclass 485 because he only wanted to stay for 18 months from November 2013. During the time he held the visa the applicant said he took a trip to India for about three months.

9. The applicants submitted that the Applicant’s student visa application in May 2015 suggested that the subclass 485 visa permitted the applicant to remain in Australia for 18 months, as recorded by the Tribunal at [17]. In contrast, it was submitted that in November 2013, a subclass 457 visa permitted holders to remain in Australia for four years from the date of grant: cl 457.511(a) in Schedule 2 of the Regulations. The applicants submitted that there was accordingly substance to the Applicant’s explanation that in 2013, given the option of applying for a visa that ran for a limited period or a visa that allowed him to remain longer, the applicant chose the shorter visa because it aligned better with his plans of returning to India.

10. I accept the Minister’s submissions as to why this ground is unable to succeed. As was submitted by the Minister, it is apparent from [17] of the Tribunal’s decision that the Tribunal was aware and conscious of the Applicant’s contentions regarding why he claimed to have applied for a Subclass 485 visa in 2013.

11. However, it is also apparent from the balance of the Tribunal’s reasoning that the Applicant’s evidence in this regard did not overcome the Tribunal’s concerns regarding the Applicant’s intentions towards residing in Australia. At [46], the Tribunal considered the Applicant’s visa history (including his holding of a subclass 485 visa). The Applicant’s lengthy history in Australia, which had included various other visa applications (including a permanent visa application), was considered to weigh collectively against the Applicant in assessing whether he was a genuine temporary entrant. This, combined with the other factors that the Tribunal weighed against him, informed the Tribunal’s conclusion that the Applicant was unable to meet this requirement for the visa.

12. Having regard to the above, I am not persuaded that the most likely inference is that the Tribunal overlooked or failed to give meaningful consideration to the Applicant’s evidence. I find that the more likely inference is that the Tribunal considered this evidence but found that it did not materially assuage the Tribunal’s concerns.

13. It follows that ground 2 is unable to succeed.

    Ground 3

14. Ground 3 took issue with the Tribunal’s finding at [41] of its decision that "the applicants have developed ties with Australia which would present as a strong incentive to remain in Australia". The applicants submitted that this finding, from [39]-[41], appeared to be based upon:

    (a)“ongoing employment in Australia”, involving “working most recently as an Uber driver”;

    (b)“continued financial backing from family in India”; and

    (c)“a network of support in Australia including his wife and friends who are prepared to assist him financially”.

15. The applicants submitted that this reasoning was irrational or illogical. They submitted that, although the income earned as an Uber driver was unclear, the amount was apparently insufficient to support the applicants (noting that the Tribunal accepted evidence that they occasionally received money from family in India and friends in Australia to support them).

16. The family in India’s financial backing of the applicants was objected to as, first, not being a tie “with Australia” and, second, not being “an incentive to remain in Australia”. The applicants submitted that this support would only provide an incentive to remain in Australia if conditional upon the applicants remaining in Australia. The applicants submitted that there was no evidence of such a condition.

17. It was submitted that the Applicant’s wife’s presence was neither a “tie with Australia” nor “an incentive to remain in Australia”. Although it was conceded that the applicants’ friends may have been a tie with Australia, it was submitted that they were not “a strong incentive to remain in Australia”. It was submitted that the fact that they had given the Applicant money in the past did not serve as an incentive to remain in Australia, without evidence of ongoing support.

18. I am not persuaded that it has been demonstrated that the Tribunal’s reasoning was relevantly closed to the Tribunal. The Tribunal reasoned as follows at [39]-[41]:

    39.The Tribunal assessed the economic circumstances of the applicants that would present as a significant incentive for them not to return to their home country including circumstances relative to their home country and to Australia. The applicant has ongoing employment in Australia, continued financial backing from family in India and a network of support in Australia including his wife and friends who are prepared to assist him financially. The applicant has not returned to India since 2014 and has not provided evidence of the remuneration he could expect to receive in his home country compared with Australia, using the qualifications to be gained from the proposed course of study

    40.The applicants’ circumstances in Australia are that they have spent many years as temporary residents (12 years in the case of the primary applicant and five in the secondary applicant’s case) and have been engaged in a variety of employment related activities outside of the applicant’s study. The primary applicant has not progressed academically as would be expected of a person whose focus in Australia should be their education. Since his arrival the applicant has completed five courses of study at the Certificate and Diploma level. Although the applicant provided an explanation as to why his Certificate III in Retail Baking took longer than expected, it does not account for the applicant’s minimal achievement overall.

    41.Based on the applicant’s bank statements and explanation of his finances over the last two years, the applicants have regular income and financial support in Australia. The applicant stated at the hearing that he has been working most recently as an Uber driver while he has declared that in the past he worked in a bakery, drove a cab and managed two sites for Puma Energy and Caltex Petroleum. The secondary applicant stated in a written submission after the hearing that she also worked for Caltex and in a beauty salon (iBrow Station). The Tribunal finds the applicants have developed ties with Australia which would present as a strong incentive to remain in Australia.

19. The Tribunal did not state that financial support provided by the Applicant’s family in India (which it acknowledged at [39]) informed its conclusion that the applicants had developed ties to Australia. However, it appears from [41] that the applicants’ “regular income and financial support in Australia” were considered to be matters capable of informing their ties. This, potentially, referred to the financial situation of the applicants collectively (including income from sources inside and outside of Australia).

20. I am not persuaded that it was closed to the Tribunal to have reasoned in this manner. The applicants’ access to financial support in Australia was capable of informing the question of ties, as it related (at least potentially) to the circumstances in which the applicants had resided in Australia for the length of time that they had. The applicants’ situation in Australia, including whether they had access to things like financial and other support, was (at least potentially) relevant to interpreting the extent to which their lengthy residence in Australia represented a significant “tie” or something more temporary. This is because it was capable of informing (at least potentially) how motivated the applicants may be to depart from their situation in Australia.

21. It was unnecessary for the Tribunal to have found that financial support was conditional upon the applicants remaining in Australia in order for it to have been considered within the context of this question. For the same reasons, it was unnecessary for the Applicant’s wife to have been a permanent resident in Australia in order for her support to have been considered. Whilst such matters may well have increased the weight given to such evidence, they were not necessary in order for the evidence to be considered. For similar reasons, I am not persuaded that the Tribunal was required to find that the financial support from the Applicant’s friends was necessarily ongoing in order for it to be considered at all. In any event, an available inference from their willingness to support the Applicant in the past was that this willingness (at least to some extent) remained.

22. The Tribunal was not obliged to reason, as suggested by the applicants, that their receipt of support from others meant that their income from work in Australia was inadequate. It is apparent (from [50]-[55]) that the Tribunal was not satisfied that the applicants had presented a completely accurate picture of their financial circumstances in Australia. However, even within the context of other support, it was open to the Tribunal to have regarded the applicants’ history of employment in Australia as demonstrative of ties.

23. As the Minister submitted, the matters considered at [38]-[41] of the Tribunal’s decision were capable of bearing upon matters that the Tribunal was required to consider under Direction No. 53. This included the Applicant’s circumstances in his home country and potential circumstances in Australia.

24. The applicants have not demonstrated that it was relevantly closed to the Tribunal to have reasoned that the matters considered by the Tribunal indicated that the applicants had “a strong incentive to remain in Australia”. This finding was open based upon the material considered by the Tribunal, including the applicants’ friends, employment and access to financial and other support over the lengthy period of their residence. Although another decision maker may have reasoned differently, this is not sufficient to meet the high thresholds associated with grounds such as illogicality or irrationality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131]-[135] per Crennan and Bell JJ.

25. It follows that ground 3 is unable to succeed.

    CONCLUSION

26. For the reasons given above, the application must be dismissed.

27. I will hear from the parties in relation to costs.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       18 February 2025