Le v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 27
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Le v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 27
File number(s): MLG 3907 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 25 January 2024 Catchwords: MIGRATION –Student visa – decision of the Administrative Appeals Tribunal – whether the primary applicant could satisfy the genuine temporary entrant criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – where primary applicant had provided material directed at her personal ties and economic circumstances in her home country and her incentive and preference to return to Vietnam– whether Tribunal failed to have regard to factors identified in Ministerial Direction No. 69 – whether Tribunal required to explicitly engage with and answer the question posed by paragraph 9(b) of Ministerial Direction No. 69 – where Tribunal did not find primary applicant’s evidence and contentions concerning ties to Vietnam convincing – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 65, 499(1), 499(2A)
Migration Regulations 1994 (Cth), cl 500.212(a) Ministerial Direction Number 69
Cases cited: Bala v Minister for Immigration and Border Protection
[2019] FCA 600
Jan v Minister for Home Affairs [2019] FCA 1837
Kaur v Minister for Home Affairs [2019] FCA 2026
Kumar v Minister for Immigration and Border Protection
(2020) 274 FCR 646; [2020] FCAFC 16
Maviglia v Maviglia [1999] NSWCA 188
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 10 October 2023 Date of hearing: 10 October 2023 Place: Melbourne Counsel for the Applicants: Mr N Mutton Solicitor for the Applicants: AR Law Services Counsel for the First Respondent: Mr J Barrington Solicitor for the Respondents: Mills Oakley ORDERS
MLG 3907 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI HONG MINH LE
First Applicant
HONG THAI PHAM
Second Applicant
MINH ANH PHAM
Fourth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The amended application filed on 12 September 2023 be dismissed.
3.The applicants pay the first respondent’s costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date of hearing.
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 SYMONS:
INTRODUCTION
By an amended application filed on 12 September 2023, the applicants seek judicial review of a decision of the second respondent (Tribunal) made on 30 November 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Student (Temporary) (class TU) (subclass 500) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (Act). The Minister opposes the application. The Tribunal entered a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicants are members of a family unit from Vietnam. The second applicant is the first applicant’s husband, and their child is the fourth applicant. Another child of the parties was originally the third applicant in this matter, however orders made by consent on 26 November 2020 removed the third applicant as a party to the proceeding.
The first applicant (referred to in these reasons as “the primary applicant”) arrived in Australia on 7 October 2008, as a dependent on the second applicant’s then current student visa (CB 82). She continued as a dependant on a subsequent student visa granted to the second applicant which was valid until 2 September 2013 (CB 82).
On 2 September 2013, the applicant was granted her own student visa to study a Certificate IV in Spoken and Written English leading to a Bachelor of Business (Accounting) (CB 82).
On 15 February 2017, the applicant made an application for a further (temporary) student visa (the subject of this application) to study a Bachelor of Business (CB 1-63).
Pursuant to cl 500.2 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) it was a condition for the grant of the visa that the primary applicant satisfy a number of primary criteria, including what is referred to as the “genuine temporary entrant” (or GTE) criterion which is contained in cl 500.212(a) and expressed as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) …
(c) …
In an accompanying statement addressing the GTE criterion, the primary applicant stated that she was applying for the visa for the purpose of undertaking a Bachelor of Business from 20 March 2017 to 31 December 2018. The primary applicant explained that she had been studying continuously from Certificate III in Hospitality to a Diploma of Hospitality and that the Bachelor of Business course would assist her to gain knowledge in Business Management which would help her “go further” in her future career (CB 37).
On 5 June 2017, the delegate refused to grant the applicants the visa on the basis that they were not satisfied that the primary applicant genuinely intended to stay temporarily in Australia, and therefore cl 500.212 was not met by her (CB 100 -109). It followed that the second, third (at the time) and fourth applicants were unable to satisfy cl 500.213 and were refused a dependent visa on that basis.
On 13 June 2017, the applicants applied to the Tribunal for review of the delegate’s decision (CB 90-92).
On 18 December 2017, the applicants informed the Tribunal that they had appointed a registered migration agent to act as their representative and authorised recipient (CB 119 -120).
On 9 November 2018, the Tribunal invited the applicants to attend a hearing, scheduled to take place on 30 November 2018 and enclosed a copy of Ministerial Direction No.69 (Direction 69) with the invitation (CB 125- 137).
On 23 November 2018, the applicants’ representative provided written submissions and supporting documents to address observations the delegate had made about the primary applicant’s study history (and proposed future study) and her future business plans (CB 149- 175).
The applicants and their representative attended the hearing before the Tribunal on 30 November 2018. The primary applicant gave evidence and was assisted by an interpreter in the English and Vietnamese languages (CB 184-185). The primary applicant submitted a completed GTE Questionnaire to the Tribunal on the day of the hearing (CB 177-182).
At the conclusion of the hearing on 30 November 2018, the Tribunal affirmed the decision under review and gave an oral statement of reasons for its decision (CB 189-194).
On 17 December 2018, the Tribunal sent the applicants a written statement of decision and reasons following a request by the primary applicant (Reasons) (CB 203-207). The Reasons confirm that the decision of the delegate was affirmed because the Tribunal was not satisfied that the primary applicant met the GTE criterion in cl 500.212(a).
PROCEEDINGS IN THIS COURT
The applicants rely on an amended application and written submissions filed on 12 September 2023.
The Minister relies on written submissions filed on 20 September 2023.
The amended application identifies the following two grounds of review:
1.The Second Respondent (the Tribunal) erred by failing to have regard to (or failing to have proper regard to) clauses 9(b) and 9(c) of Direction 69 and/or by failing to consider (or failing to properly consider) Ms Thi Hong Minh Le’s (the First Applicant) claims.
Particulars
a.The First Applicant was the primary applicant. The applications of the other applicants depended on the success of the First Applicant’s application.
b.The Tribunal affirmed the decision under review on the basis that it was not satisfied that the First Applicant intended genuinely to stay in Australia temporarily.
c.The First Applicant made claims and submitted materials relating to her personal ties and economic circumstances in Vietnam, and her incentive and preference to return there.
d.In the circumstances, the Tribunal was required to consider clauses 9(b) and 9(c) of Direction 69.
e.The Tribunal did not consider (or properly consider) the First Applicant’s claims and did not have regard to (or have proper regard to) clauses 9(b) and 9(c) in making its decision.
2.The Tribunal acted unreasonably by not considering (or properly considering) the First Applicant’s claims about her incentives and preference to return to Vietnam.
Particulars
a.Particulars (a) – (e) of ground 1 are repeated.
b.Further, and in the alternative to ground 1, it was legally unreasonable for the Tribunal to find that it was not satisfied the First Applicant did not intend to genuinely stay in Australia temporarily without properly considering the First Applicant’s claims.
LEGAL FRAMEWORK
Although the parties join issue on their application to the facts of this case, there is agreement between them as to the following matters:
First, the Tribunal, as a body having functions or powers under the Act was required to comply with any direction given by the Minister concerning the performance of those functions or exercise of those powers pursuant to s 499(1) of the Act (refer s 499(2A)).
Second, Direction 69 is an example of a direction given by the Minister under s 499(1) of the Act and applies to the Tribunal in connection with its review of decisions of primary decision- makers in relation to student visa applications.
Third, Direction 69 identifies factors that a decision maker “should have regard to”. The parties’ approach to the interpretation of this obligation differed slightly in its emphasis and nuance, as will be discussed below.
Fourth, paragraphs 9(b) and 9(c) of Direction 69 state:
The applicant’s circumstances in their home country
9.When considering the applicant's circumstances in their home country, decision makers should have regard to the following factors:
a. …
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant's circumstances relative to the home country and to Australia;
…
GROUND ONE
Applicants’ submissions
The applicants submit that the direction to the Tribunal that it “should have regard to” identified factors, operates on matters that are the subject of substantial, clearly articulated claims made by a visa applicant or which clearly emerge from the materials. In support of this proposition, the applicants rely upon the following passage appearing at [31] of the judgment of Steward J in Kaur v Minister for Home Affairs [2019] FCA 2026:
In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error.
The applicants submit that proper consideration of such claims requires evidence of engagement in an active, intellectual process.
The applicants submit that through submissions made on her behalf and the production of supporting documents, the primary applicant specifically addressed her personal ties in Vietnam and identified those ties as creating a significant incentive for her to return to her home country. Illustrative of this, the submissions referred to the primary applicant’s preference for life in Vietnam and spoke of her plans to start a business in Vietnam, which plans were supported by the production of a business plan. The primary applicant had also submitted materials that indicated her economic circumstances in Vietnam were good (amongst these were documents confirming the primary applicant had funds saved in Vietnamese banks and documents showing she and her husband owned land in Vietnam), this being a further consideration that could operate as an incentive for her to return there, and to inform the question of whether the primary applicant intended genuinely to stay in Australia temporarily.
The applicants place particular emphasis on the following passage taken from the written submission provided to the Tribunal on 23 November 2018 (CB 152):
We note that the Applicant has many ties to her home-country. All her and husband’s family members currently reside in Vietnam. Furthermore, the Applicant holds a firm idea that life is better in Vietnam and it is far less stressful than in Australia. Moreover, her friends and communities look after each other better than in Australia, such that her preference is to set up a life in Vietnam. The Applicant also has no issues of concern in Vietnam in regards to police or any Vietnamese organisations. The Applicant provided supporting evidence including the land ownership certificate and savings account in Vietnamese bank (please see attachment No 10, 11 and 12). We submit that the above factors represent the Applicant’s incentives to return to Vietnam after completing her degree, which is needed to open a restaurant business.
….
…the Applicant has ties to her home country that are significant and act as an incentive for her to return to Vietnam after completing her education in Australia.
The applicants submit that these claims possess the quality of being substantial and clearly articulated and that in these circumstances, the Tribunal was required to engage actively with them in their intersection with paragraphs 9(b) and 9(c) of Direction 69 and in considering the primary applicant’s personal circumstances, as required by cl 500.212(a).
The applicants submit that the Tribunal’s process of engagement with these claims fell short of what was required, as can be inferred from the Reasons.
As I understood the applicants’ submissions, especially as developed at the hearing, the principal complaint was that although the Tribunal referred to aspects of the primary applicant’s submissions and material directed at her connection to Vietnam, it did not go on to consider the question of whether any of these circumstances would serve as a significant incentive for her to return there; this being the paragraph 9(b) question. Instead, the only question considered by the Tribunal was whether the primary applicant’s ties with Australia would present as a strong incentive to remain in Australia. The Tribunal answered this question in the affirmative (Reasons, [16]).
In other words, despite the Tribunal:
·Noting that it had considered comments about the primary applicant’s “family connections to Vietnam” and desire to open a restaurant (in Vietnam) (Reasons, [8]); and
·Stating (in the context of addressing why the primary applicant said she chose to study in Australia rather than Vietnam) that it “considers the applicant’s circumstances in her home country” (Reasons, [13]).
the Tribunal never considered whether such circumstances would serve as a significant incentive for the primary applicant to return to her home country and could not have formed a proper view, absent this evaluation, of whether she intended to genuinely stay in Australia temporarily.
The applicants submit that the Tribunal also fell into error by not considering (or properly considering) whether the primary applicant’s economic circumstances provided an incentive for her to return to Vietnam and by not having regard to paragraph 9(c) of Direction 69. It was said that although this paragraph was concerned with whether there was an incentive not to return to the home country, resolution of this question necessitated consideration of the primary applicant’s economic circumstances in Vietnam which included having money and a home.
The applicants submit that it was telling that the delegate in their decision had engaged with the primary applicant’s circumstances in Vietnam in a manner that was faithful to questions posed by Direction 69. In particular, the delegate had considered whether the primary applicant’s personal ties and economic circumstances in Vietnam created a strong incentive to return home. This analysis was said to be conspicuously absent from the reasons of the Tribunal.
Minister’s submissions
The Minister submits that where Direction 69 states that the decision-maker is to “have regard to” a factor, that only requires the decision-maker to “turn his or her attention to each factor during the decision-making process and consider whether and how it should be brought to bear in reaching the decision” (referring to Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 (Kumar) at [83]). However, as the Full Court further observed in Kumar at [96] that requirement:
…does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming a view that a factor was not material in the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial.
The Minister submits that this statement sits comfortably with the explanation given in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [24] about a decision-maker’s obligation to “consider”. There, a majority of the High Court said that a decision-maker:
…must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality if thought appropriate. The weight to be afforded to the representation is a matter for the decision-maker. And the decision- maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
Applying these statements of principle to this case, the Minister submits that no inference should be drawn that the Tribunal failed to have regard to paragraphs 9(b) or (c) of Direction 69.
This follows from:
First, the Tribunal having expressly recognised that it was necessary for it to “have regard to the issues in what is known as Ministerial Direction number 69” (Reasons, [5]) and its reference to the delegate’s consideration of the issues, including the primary applicant’s “incentive to stay in Australia or return home” (emphasis added) (Reasons, [5]). It followed that the Tribunal was clearly aware of its obligation, and the issue concerning the primary applicant’s incentives to return home. It was reasonable thus to infer that matters not mentioned were considered but were not “sufficiently germane to the Tribunal’s decision to warrant express mention” (referring to Bala v Minister for Immigration and Border Protection [2019] FCA 600, at [17]).
Second, the Tribunal also expressly referred to the primary applicant’s written submission to the Tribunal (Reasons, [7]), and correctly summarised part of its contents. This was said to provide a strong basis to conclude that the Tribunal had in fact read the submission which the applicant says was not considered.
Third, the Tribunal said at Reasons, [8] (emphasis added):
The tribunal has considered your comments about English level courses, cancellation of courses, poor study outcomes in a Bachelor of Business in 2014, your enrolment in a series of vocational and education training level courses in the hospitality sector, your commencement again of a Bachelor of Business, your family connections to Vietnam, your desire to open a restaurant to […] in Vietnam, and the fact the applicant’s husband and children seek continuing residency with you in Australia.
It was submitted that in this passage, the Tribunal had plainly identified some of the primary applicant’s evidence regarding her claimed incentives to return home – namely, her family connections to Vietnam and her desire to open a restaurant there. This was again said to provide a strong basis to conclude that the Tribunal had not overlooked her evidence about her incentives to return home with the better inference that the Tribunal did not expressly refer to these matters because it did not find them to be sufficiently material.
Fourth, at Reasons, [13], the Tribunal said that it had considered “the applicant’s circumstances in her home country”. The identification of that consideration, and the absence of mention to the factors referred to specifically by the applicants in this application for judicial review, indicated that those matters were not considered material.
Fifth, after considering the primary applicant’s familial circumstances in Australia, the Tribunal said at Reasons, [16] (emphasis added):
It is clear to the tribunal that the applicant quite naturally after so many years in Australia as a resident has developed many normal conditions attached to family life and residency in a new country. The tribunal is of the view the applicant’s ties with Australia of family, work, study, children, income, and religious participation present as a strong incentive to remain in Australia.
The Minister submits that this passage should be understood as involving an implicit rejection of the primary applicant’s contentions to have significant incentives to return home especially as those incentives were said to derive from her family ties and financial circumstances in Vietnam. The Tribunal was not ignorant of these matters. It simply did not find them persuasive faced with other matters that operated as an incentive to remain in Australia.
The Minister’s written submissions also suggested that because the decision of the Tribunal was delivered on the same day of the hearing (justifying the label of “ex tempore”), the observations made by Mason P in Maviglia v Maviglia [1999] NSWCA 188 at [1], where his Honour cautioned against “picking over” an ex-tempore judgment, were apposite. At hearing, counsel for the Minister, Mr Barrington, explained that the submission involved an application of the Wu Shan Liang principle that the reasons for decision are not to be construed minutely and with an eye keenly attuned to the perception of error. This was said to be capable of particular application to a decision given orally.
CONSIDERATION OF GROUND ONE
The case of Kumar involved alleged errors in a decision of the Tribunal relating to the application of Direction 53, a predecessor direction to Direction 69.
The Full Court considered submissions including one not dissimilar to that advanced here by the applicants that where a factor identified in the Direction posed a question, the Tribunal was obliged to answer it, not merely think about it.
Kumar involved an implicit rejection of this submission. Instead, the Full Court found that the obligation reposed in the Tribunal took on less absolute dimensions. As noted earlier, Derrington and Thawley JJ found instead that the phrase “must have regard to” means that the decision-maker should turn his or her attention to each factor during the decision-making process and consider whether and how it should be brought to bear in reaching the decision (Kumar at [83]).
The Full Court referred in this context to the following passage of Colvin J in Jan v Minister for Home Affairs [2019] FCA 1837 where at [26] his Honour explained:
[T]he Tribunal must advert to [the factors] for the purpose of considering whether they should be brought to bear, but if the Tribunal forms the view that they are not significant in the particular case then they can be put to one side based upon that assessment. The Tribunal is not obliged to go down and check off each one irrespective of the circumstances and bring it to account in its reasons.
The Full Court considered it a matter of some significance that paragraph 1 of Part 2 of Direction 53 contained the following statement:
Decision makers should not use the factors specified in this Direction as a checklist. Rather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
A similar statement appears in Direction 69.
Although the Full Court acknowledged that it was desirable for an administrative decision- maker to expressly refer to factors which have been made mandatorily relevant by statute so as to provide assurances to the parties that a case has been properly considered, it nonetheless accepted that it was within the authority of the decision-maker to limit its written record of decision to findings on material questions of fact which would in turn, entitle the inference to be drawn that a matter not mentioned in the statement was not considered by the decision- maker to be material, rather than its omission revealing that the matter was overlooked.
As far as paragraph 9(b) of Direction 69 is concerned, I accept that the Tribunal in its Reasons did not record any finding that engaged with the specific language contained in that provision. However, I am not persuaded that I should infer from this omission that the Tribunal failed to turn its attention to this factor during the decision-making process and consider whether and how it should be brought to bear in reaching its decision.
I consider instead that in circumstances where the Tribunal adverted to the paragraph 9(b) factor by making specific reference to the primary applicant’s “family connections to Vietnam” and “desire to open a restaurant in Vietnam”, these being matters that the applicants’ representative had identified as considerations that were capable of operating as incentives to return to Vietnam, the better inference is that the Tribunal considered such matters but ultimately determined to put them to one side as not significant or material to the weighing exercise that it engaged in and which produced an outcome that was adverse to the applicants.
This is not to say however that the Tribunal did not take account of these matters as part of the whole of the circumstances that it considered. To the contrary, as the Tribunal recorded at Reasons, [13], it took account of the primary applicant’s circumstances in her home country. I infer that consideration of these circumstances guided the Tribunal in reaching a finding about whether the primary applicant satisfied the genuine temporary entrant criterion.
This conclusion does not depend upon the acceptance of the Minister’s submission that the finding at Reasons, [16] involved an implicit rejection of the primary applicant’s contention to have significant incentives to return home. Direction 69 recognises that there may be incentives and ties that pull in both directions and a finding in relation to one country does not invariably subsume or preclude a finding in relation to the other country. I do accept however that a fair reading of the Tribunal’s Reasons reveals that the Tribunal did not find the primary applicant’s evidence and contentions concerning her ties to Vietnam to be convincing.
When it is accepted that the Tribunal had some latitude as to whether and how it chose to bring any of the factors identified in Direction 69 to bear, the fact that the delegate decision adopted a different course which recorded a specific finding about the primary applicant’s incentives to return to Vietnam, does not assume particular significance nor alter the conclusion that I have reached about the adequacy of the Tribunal’s approach in this case.
As far as paragraph 9(c) is concerned, in circumstances where the question posed by this factor is directed at establishing economic circumstances that operate as an incentive not to return to the home country, the fact that the Tribunal did not explicitly answer the question is unremarkable. As noted earlier, the primary applicant identified her economic circumstances in Vietnam as matters that were capable of operating as an incentive to her return. It is clear from the Tribunal’s Reasons at [16] that as far as matters including work and income were concerned, the Tribunal took the view that conditions in Australia favoured the primary applicant.
Ground one is dismissed.
GROUND TWO
Applicants’ submissions
The applicants rely upon the same particulars identified in relation to ground one to allege error in the decision or approach of the Tribunal.
They submit that it was legally unreasonable for the Tribunal to find that the primary applicant did not intend genuinely to stay in Australia temporarily without taking the factors identified by the primary applicant, including her stated preference to return to Vietnam, as incentives to her return to her home country, especially when it considered that the primary applicant’s ties in Australia provided a strong incentive for her to remain in Australia.
Minister’s submissions
The Minister submits that for the reasons relied upon in relation to ground one, no inference should be drawn that the Tribunal failed to consider the primary applicant’s submissions concerning her incentives to return to Vietnam.
Insofar as the applicants placed particular reliance upon the primary applicant’s stated “preference” to return to Vietnam, the submission was made that the better inference was that the Tribunal had impliedly rejected that contention in circumstances where it had noted that: (a) the primary applicant had been in Australia for 10 years; (b) the primary applicant had a series of strong incentives to remain in Australia; and (c) the primary applicant was “already a university graduate before ever coming to Australia and has over many years chosen to study trade qualifications…at a level below her university accomplishments” (Reasons, [19]); and (d) was now choosing to undertake a course “that will not assist the applicant to obtain employment or improve employment prospects in her home country” (Reasons, [23]).
CONSIDERATION OF GROUND TWO
As I have found, in relation to ground one, that the Tribunal did not fail to consider the matters identified by the primary applicant as capable of operating as incentives to her return to Vietnam, I reject the central premise of the applicants’ ground two and the allegation that the Tribunal decision and approach was legally unreasonable.
I consider that the Reasons construed as a whole, including those aspects of the Reasons emphasised by the Minister in his submissions, supply an intelligible justification for the Tribunal’s decision and culminated in a decision that fell within a range of possible, defensible outcomes.
Ground two is dismissed.
ORDERS
For the reasons set out above I have not been persuaded that the decision of the Tribunal dated 30 November 2018 is affected by jurisdictional error.
Accordingly, I will order that the amended application dated 12 September 2023 be dismissed and that the applicants pay the first respondent’s costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date of hearing.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 25 January 2024
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