Leka v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 123
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123
File number(s): ADG 272 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 7 February 2025 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal –– whether Administrative Appeals tribunal breached s 359A or s 359AA of the Migration Act – whether obligation to put information to applicant – whether Tribunal could rely upon common knowledge or common sense – irrationality – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 359AA, 359A, 359A(1), 359A(4)(a)
Migration Regulations 1994 (Cth) cll 500.212, 500.212(a), 500.311
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130
Minister for Immigration and Citizenship v MZYCE [2010] FCA 767
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297
SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 436 FCR 549
Webb v Minister for Home Affairs (2020) 170 ALD 511
Division: Division 2 General Federal Law Number of paragraphs: 109 Date of last submission/s: 4 September 2024 Date of hearing: 30 October 2024 Place: Adelaide Counsel for the Applicants: Oliver Morris Solicitor for the Applicants: MSM Legal Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 272 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIOLETA LEKA
First Applicant
ARBEN LEKA
Second Applicant
ALISIA LEKA (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
7 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 GERRARD:
INTRODUCTION
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Student (Class TU) (Subclass 500) visas (the visas). For the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
Ms Leka (the applicant) is a citizen of both Italy and Albania, having been born in Albania (CB 3). Mr Leka is a citizen of Italy and is the applicant’s husband (CB 5-6). The third and fourth applicants are the children of the first and second applicants, and were born in Italy in 2015 and 2012, respectively (CB 7-10). They first arrived in Australia on 15 August 2018 on visitor visas (CB 169, 265).
On 8 November 2018, the applicants applied for the visas (CB 1-30). In that visa application, the applicant indicated that she intended to study a general English Language Intensive Course for Overseas Students (ELICOS) course, which she completed in November 2019 (CB 2, 172). She included the second, third and fourth applicants as members of her family unit (CB 5-12).
The applicants appointed a migration agent as their authorised recipient (CB 14).
On 22 November 2018, a delegate of the first respondent (the Minister) wrote to the applicants’ migration agent requesting further information from the first, second and fourth applicants (CB 99-106).
On 21 December 2018, the applicants provided the delegate with a ‘Change of Address Details’ form (CB 107-110), ‘Notification of incorrect answer(s)’ form (CB 111) and other information from the first, second and fourth applicants (CB 112-129).
On 18 February 2019, the delegate refused to grant the applicants the visas (CB 130-146). The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 138, 141). That criterion provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) 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…
On 4 March 2019, the applicants applied to the Tribunal for review of the delegate’s decision (CB 147-149).
On 15 January 2021, the Tribunal wrote to the applicants’ migration agent, inviting them to provide further information in a ‘Request for Student Visa Information’ form (the Information form) by 29 January 2021 (CB 157-160). The Tribunal also provided the applicants with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) (CB 161-165).
In January 2021, the applicants’ migration agent provided a completed Information form (CB 166-180), which attached other supporting documentation (CB 181-230). In that form, the applicant advised that she was enrolled in a Certificate III in Commercial Cookery, and that she intended to study a further Certificate IV in Commercial Cookery and Diploma in Hospitality Management (CB 172).
On 1 April 2021, the applicants were invited to attend a hearing scheduled for 19 April 2021 (CB 231-236).
On 7 April 2021, the applicants’ migration agent provided a ‘Response to Hearing Invitation’, indicating that she would be attending the hearing along with the first and second applicants (CB 239-242).
On 16 April 2021, the applicants’ migration agent wrote to the Tribunal, providing additional information and three Certificates of Enrolment for the applicant’s Certificates III and IV in Commercial Cookery, and Diploma of Hospitality Management (CB 243-251).
On 19 April 2021, the applicant and her migration agent attended the hearing (CB 252). The applicant was also assisted by an Italian interpreter (CB 252).
Later that day, the applicants’ migration agent provided further information to the Tribunal which sought to outline the reasons why they intend to return to Italy and that they had genuinely come to Australia as tourists (CB 255-259).
On 6 August 2021, the Tribunal notified the applicants of its decision (CB 260-262), affirming the delegate’s decision not to grant the applicants visas (CB 263-277).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s reasons began by identifying the visa under review, noting that the applicant had applied for the Student (Temporary) (Class TU) visa on 8 November 2018 (at [2]). The Tribunal observed that, at the time of application, the visa class contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, it noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]). The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant satisfied the requirements of cl 500.212 of Schedule 2 to the Regulations (at [3]). Consequently, the delegate found that the secondary applicants, her husband and children, did not meet the requirements of cl 500.311 of Schedule 2 to the Regulations, and did not meet the criteria for the grant of a student visa (at [4]).
The Tribunal confirmed that the applicants appeared before the Tribunal on 15 April 2021 to give evidence and present arguments, with the assistance of an Italian interpreter (at [5]). The Tribunal also confirmed that the applicants were assisted in relation to the review by their migration agent (at [6]).
The Tribunal found that the issue before it was whether the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Regulations (at [9]). The Tribunal set out cl 500.212 in that regard (at [10]).
The Tribunal explained that, in considering whether the applicant satisfied cl 500.212(a), the Tribunal must have regard to Direction 69. The Tribunal set out a number of factors it was required to consider, including the applicant’s circumstances in their home country, their immigration history, the intentions of a parent or legal guardian for an applicant who is a minor, and any other relevant information (at [11]). It emphasised that the factors specified should not be used as a checklist, but rather are intended to guide decision makers when considering the applicant’s circumstances as a whole (at [12]).
Against this background, the Tribunal made the following findings.
The Tribunal outlined that the applicant first came to Australia on 15 August 2018 with her husband and two children on a visitor visa (at [13]).
The Tribunal confirmed that prior to the hearing, on 29 January 2021, the applicant filed a response pursuant to an invitation to supply student visa information about her courses, as well as information about her entry and stay in Australia. She also filed various supporting documentation in support of this invitation (at [16]).
The Tribunal heard from the applicant that, in or about 2010, she got married and moved away to Italy with her husband who was working there at the time (at [19]). She gave evidence that, in 2018, her immediate family decided to travel to Australia for approximately one month during their summer holidays. On this holiday, she met some Italians in Adelaide who informed her that they were enjoying both working and studying in Australia (at [21]).
The Tribunal further heard from the applicant that she decided to study here in Australia, spoke with an immigration agent, and enrolled in an ELICOS course within about a month of arriving in Australia. The Tribunal did not accept her timeline, noting that her enrolment in the ELICOS course took place approximately two and a half months after her arrival, and that she decided to extend her time in Australia with her family (at [22]). The Tribunal also heard from the applicant that at the time of making that decision, her husband’s business was running well and her husband’s employees, whom he trusted, were prepared to continue the business while he was away (at [22]).
The Tribunal accepted that whilst the applicant has limited education and employment history by reason of working in her husband’s business, the completion of the hospitality and cooking courses in Australia would likely improve her employment prospects and ability to earn higher levels of income on returning to Italy. The applicant claimed in evidence that she anticipated her salary as a starting chef would be approximately €3,000 per calendar month. The Tribunal observed that this is a high level of income for a starting chef who has no prior work experience (at [24]).
The Tribunal noted that the applicant is not employed in Australia. It heard evidence from her that, if she was to be employed as a chef in Australia, she anticipated her income would be approximately $1,000 per week, which the Tribunal found was comparable to the level of income she anticipates she would receive in Italy at a starting wage of €3,000 per calendar month. She also gave evidence that the economic conditions in Italy are comparable with those in Australia, and she submitted that there is not a significant financial incentive for her to remain in Australia (at [29]).
The Tribunal noted the applicant has the ability to undertake cooking courses in Italy. She gave evidence that there is a Cordon Bleu cooking school where she could obtain a diploma, but she claimed it is expensive and there would be a significant amount of traffic and travel time of approximately 45 minutes to get to the college from where she and her family live. The Tribunal did not accept that as being a reasonable motivation for undertaking the course in Australia rather than in Italy, especially where the applicant has travelled from Europe. The applicant, in her response, claimed the lifestyle in Italy does not lend itself to work and study like Australia does, and that courses in Italy do not offer work placements and are somewhat shorter than in Australia. The Tribunal concluded that, whilst those matters may be true, the applicant could undertake those studies in Italy and the qualifications she would obtain there would assist her in obtaining employment in the Tuscany region (at [30]).
The Tribunal also noted there does not appear to be a substantial incentive to return home if they are being financially provided for in Australia, where the applicant’s husband was earning $1,200 per week in construction, and where their expenses of approximately $38,760 per annum are covered from the business in Italy and from their savings (at [31]).
The Tribunal found that the applicant’s total period of stay in Australia would be 3 years and 9 months if she completes her study here. It noted that this is a very long period of time to have been in Australia, having arrived here on a tourist visa, and that such length of stay appears to be inconsistent with a temporary stay (at [33], [44]). It noted that the applicant has not returned home to Italy during her stay in Australia in the last 3 years, and whilst acknowledging travel restrictions imposed by the COVID-19 pandemic, it highlighted concern in this regard where a failure to return home appears consistent with her wanting to remain in Australia permanently (at [34]). It also noted that whilst the applicant has some connection to Italy, her ties and connections are very limited, and that such ties are not strong and do not provide a strong incentive to return to Italy (at [38]). Consequently, it found that her ties to Australia are substantially stronger than those back in Italy, or alternatively, Albania (at [40]).
The Tribunal noted that whilst the applicant’s husband has a business in Italy and they are currently renting out a house in Italy, it does not appear that they have any assets of substantial means which would create an incentive to return home. It noted that the furniture, motor vehicles and business tools owned by the applicants are transportable, and that the $123,000 in savings can be transferred out of Italy and moved to Australia (at [35]).
The Tribunal confirmed that, immediately after the hearing on 19 April 2021, the applicants’ migration agent filed supplementary submissions which sought to outline the reasons why they intend to return to Italy and that they had genuinely come to Australia as tourists (at [18]).
The Tribunal was ultimately not satisfied that the applicant intended to genuinely stay in Australia as a student as required by cl 500.212 of Schedule 2 to the Regulations (at [45]). Consequently, the secondary applicants did not meet the requirements of cl 500.311 of Schedule 2 to the Regulations and they did not meet the criteria for the grant of a student visa (at [47]).
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (at [48]).
APPLICATION TO THIS COURT
An amended application was filed by the applicants on 22 August 2024 and contains two grounds of review as follows (without alteration):
a.The Tribunal denied Mrs Leka procedural fairness:
i.Pursuant to ss 359AA and 359A of the Migration Act 1958, the Tribunal was required to put adverse information to Mrs Leka.
ii.The impugned findings related to adverse information which was required to be put to Mrs Leka.
iii.The Tribunal never put the information the subject of the Impugned findings to Mrs Leka.
iv.In failing to comply with ss 359AA and 359AB, the Tribunal denied Mrs Leka procedural fairness and fell into jurisdictional error.
b.The Tribunal made irrational findings of fact unsupported by evidence:
i.Impugned findings 1, 2, 3, 4, 6, 7 and 8 have no basis in any of the evidence before the Tribunal.
ii.No logical chain of inference was available that cold have led to Impugned findings 1, 2, 3, 4, 6, 7 and 8.
iii.The Tribunal accordingly acted irrationally by making impugned findings 1, 2, 3, 4, 6, 7 and 8.
iv.The irrationality attached to Impugned findings 1, 2, 3, 4, 6, 7 and 8 is of such significance to the Tribunal’s ultimate decision that it infects the entirety of the Tribunal’s decision with jurisdictional error.
The grounds of the amended application are to be read by reference to the “impugned findings” in the Tribunal’s decision, particularised in a schedule to her amended application.
The impugned findings are summarised by the applicant as follows:
1
That the amount the applicant claimed she could earn in Italy represented “a high level of income for a starting chef who has no prior work experience” (at [24].
2
The Tribunal had “concerns that the applicant has undertaken these studies here in Australia to maintain residency, rather than an education which would improve her employment prospects and remuneration back home” (at [26]).
3
The Tribunal found that the applicant’s educational courses in Australia “appear to be utilised by the applicant for the purposes of maintaining residence here in Australia, which is inconsistent with the purpose of the student visa” (at [28]).
4
The Tribunal found that “the reality is that the applicant could undertake those studies in Italy and the qualifications that she would obtain there would assist her in obtaining employment in the Tuscan region” (at [30]).
5
The Tribunal found that most of the applicant’s expenses “are covered from the business in Italy and from their savings, which in the circumstances does not provide them with a substantial incentive to return home if they are being financially provided for here in Australia” (at [31]).
6
The Tribunal referred to the applicant’s assets in Italy, including motor vehicles, furniture, and business tools worth approximately $52,000. The Tribunal found that these items were “transportable” (at [35]).
7
The Tribunal referred to the applicant’s claim to have $123,000 in savings, finding that this could be “transferred out of Italy and moved to Australia” (at [35]).
8
The Tribunal found that the applicant “has the prospect of earning a high level of wages here in Australia in the event she obtains a visa and is able to obtain employment” (at [39]).
At the hearing of this matter, counsel for the applicant advised that the applicant no longer pressed any error arising from impugned finding 5.
CONSIDERATION
Ground one – Did the Tribunal breach sections 359AA and 359A?
Sections 359AA and 359A require the Tribunal to put certain adverse information to an applicant which would be the reason or part of the reason for affirming the decision under review. Those provisions relevantly state:
359AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 436 FCR 549, Finn and Stone JJ held at [24] that the word “information”:
…does not encompass the Tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc…
This statement was approved by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297 at [18] who observed:
If the contrary were true, [the corresponding provision in the then Part 7] would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief…
In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9], the High Court stated:
Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
In SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at [18], the Full Court of the Federal Court (Perram, Jagot and Griffiths JJ) held that “information” “does not extend to the “prospective reasoning process” of the Tribunal”.
Against that background, the Court makes the following findings in respect of whether the impugned findings breached ss 359A or 359AA or otherwise were reliant upon adverse information which should have been put to the applicant.
Impugned finding 1
Impugned finding 1 is set out below:
24. Whilst the Tribunal accepts that the applicant has limited education and limited employment history by reason of working in her husband’s business, the completion of the hospitality and cooking courses that she is enrolled to undertake here in Australia would likely improve her employment prospects and ability to earn higher levels of income on returning to Italy. The applicant in evidence claimed that as a starting chef, she had anticipated that her salary would be approximately €3,000 per calendar month. The Tribunal notes that this is a high level of income for a starting chef who has no prior work experience.
The applicant submitted that impugned finding 1 should be understood as suggesting that the amount the applicant claimed she would be paid in Italy was unrealistically high. The applicant argued that the Tribunal’s observations about €3,000 being a “high level of income for a starting chef who has no prior work experience” is a finding as to information which formed a part of the reason for rejecting the applicant’s claims. The applicant submitted that, at the Tribunal hearing, it was never suggested that €3,000 per month was a high level of income, that it was unrealistically high, or that it indicated that her claims as to prospective employment were not true. It was for this reason the applicant argued that the Tribunal should have specifically put this to the applicant for comment.
The Minister submitted that whether a salary of €3,000 per month as a starting chef in Italy with no experience was a high level of income was just an evaluative judgment that the Tribunal formed based on its common knowledge or common sense in response to the applicant’s own evidence. The Minister relied upon Webb v Minister for Home Affairs (2020) 170 ALD 511 at [79]-[100] (Webb) in support of the proposition that the Tribunal was entitled to rely upon common knowledge or common sense. The Minister argued that the Tribunal’s remarks simply reflected its subjective appraisal of the applicant’s own evidence, which is not captured by s 359A(1). The Minister further submitted that, even if there was any specific information about salaries in Italy before the Tribunal (which there is no evidence of), that information is information that is not specifically about the applicant, such that it would be excluded by s 359A(4)(a) in any event.
The applicant claimed that she would earn a starting salary of €3,000. The Court notes that this claim was totally unsupported by any evidence or context. The Tribunal asked the applicant why she would expect to be hired as a chef without any experience. In relation to the proposed salary, the Tribunal asked her whether it was the pay for an executive chef, a sous chef or a kitchen hand. When directly asked how the applicant had arrived at the figure of €3,000 per month, her answer was that she had asked a potential employer how much they were willing to pay.
The Tribunal was not required to accept her evidence, unsupported and unexplained as it was. In this sense, the applicant’s submission is tantamount to saying the Tribunal was required to put to the applicant any doubts it held about her evidence, contrary to the authorities cited above. As observed, the Tribunal was not required to disclose its inner thought processes, or its views on the credibility of her claims or its decision to not accept a claim or submission.
In any event, the applicant’s submission fails on a factual level for two reasons. Firstly, the Tribunal did press the applicant in respect of this matter. It specifically asked the applicant how she arrived at the amount of €3,000. The Tribunal was not required to disclose to the applicant that it may have had doubts about the accuracy of that amount. That is particularly the case where, as here, the source of the applicant’s claimed figure was little more than a singular undocumented conversation.
Furthermore, whilst the Tribunal queried the amount on the basis it seemed high, it ultimately accepted that this was the amount the applicant anticipated she would earn. The applicant incorrectly suggests a finding was made by the Tribunal that she would not earn that amount of money. In the context of evaluating her financial and other ties to Italy, it was not required to determine what amount she would be likely to earn. Ultimately, the Tribunal accepted that the applicant thought she would earn that amount.
Accordingly, the observation by the Tribunal that the applicant’s anticipated starting salary seemed high was not an adverse finding, or a part of an adverse finding, which was the basis for her application not succeeding. There was no requirement to put this passing observation to the applicant for comment, particularly in circumstances where it accepted her evidence that she anticipated she would earn this amount.
Impugned findings 2 and 3
Impugned findings 2 and 3 are set out below:
26. The Tribunal has concerns that the applicant has undertaken these studies here in Australia to maintain residency, rather than to obtain an education which would improve her employment prospects and remuneration back home. Further, the applicant has come here with her whole family and sought to have them stay here on a decision to change her intentions on a holiday to study here.
[…]
28. The Tribunal notes that the applicant is undertaking vocational education training (VET) courses which are lower level courses that are inexpensive and appear to be utilised by the applicant for the purposes of maintaining residence here in Australia, which is inconsistent with the purpose of the student visa.
The applicant submitted that impugned findings 2 and 3 are to the effect that the applicant has engaged in education in Australia for the illegitimate purpose of maintaining residency, rather than for genuine educational purposes. The applicant argued that such information was not simply adverse to the applicant’s application; if accepted, it was fatal. The applicant submitted that the Tribunal was required to put this information to the applicant.
The Minister submitted that the Tribunal’s concern that the applicant was undertaking studies to maintain residency simply reflected its subjective appraisal of the applicant’s evidence and circumstances (namely, that the applicant had travelled to Australia with her whole family and changed her intentions from taking a holiday in Australia to studying, and was studying inexpensive lower level VET courses). There was nothing in its concern that fell into the definition of information.
The sole issue for the Tribunal was whether or not the applicant genuinely intended to stay temporarily in Australia to study. In the Court’s view, it is patently clear that that was not specifically required to be put to the applicant. Any suggestion to the contrary is an invitation to engage in impermissible merits review.
Impugned finding 4
Impugned finding 4 is as follows:
30. The Tribunal notes the applicant has the ability to undertake cooking courses in Italy. The applicant gave evidence that there is a Cordon Bleu cooking school where she could obtain a diploma approximately 45 minutes from where they live, however, she claims it is expensive and there would be a significant amount of traffic and significant travel time of approximately 45 minutes to get to the college. The Tribunal does not accept that as being a reasonable motivation for undertaking the course in Australia rather than in Italy, especially where the applicant has travelled from Europe. The applicant in the Response claimed that the lifestyle in Italy does not lend itself to work and study the way life in Australia does. Further, she claims that courses in Italy are somewhat shorter than those being undertaken at Salford College. Whilst those matters might in fact be true, the reality is that the applicant could undertake those studies in Italy and the qualifications that she would obtain there would assist her in obtaining employment in the Tuscan region.
The applicant submitted that information to the effect that it was possible for the applicant to study a course in Italy similar to that which she had undertaken in Australia was never put to her. The applicant submitted that the “reality” found by the Tribunal that the applicant “could” study in Italy appears to have been missed in the Tribunal’s “otherwise comprehensive interrogation of her motivations”. Thus, the applicant argued, although impugned finding 4 related to information which formed a part of the reason for affirming the delegate’s decision, the substance of the information was never put to the applicant.
The Minister submitted that the fact that the applicant could undertake similar studies in Italy arose out of the applicant’s own evidence that there was a Cordon Bleu cooking school 45 minutes from where she lived. The Minister submitted that it was just common sense, and a response to the applicant’s own evidence, that studying at a cooking school in Italy would assist the applicant in securing employment as a cook in Italy.
The Court notes that this issue was squarely raised by the delegate (CB 139):
They have not provided evidence that, since that time, they have made any thorough investigation of further study options in their home country, which raises serious concerns regarding their motivation to now study in Australia.
There was also a specific question asked of the applicant by the Tribunal in the Information form (CB 173):
If there are similar courses available in the main Applicants country or region to the [obscured]… studying and/or propose to study in Australia, please give details of the Main Applicant’s reasons for not undertaking the course in their home country or region.
The applicant provided an answer where she raised the course in her area. The Tribunal then asked her several direct questions about why she would study in Australia rather than Italy. In the Court’s view, nothing further was required to be put to her for it to be procedurally fair.
Impugned findings 6 and 7
Impugned findings 6 and 7 are contained in the following paragraph:
35. Whilst the applicant’s husband has a business in Italy and they are currently renting a house in Italy, it does not appear from the Response that they have any assets of substantial means which would create an incentive for them to return home. The applicant in the Response claimed that they have furniture, motor vehicles and business tools which appear to be worth some $52,000, however, these are items which are transportable. Further, the applicant claims they have AU$123,000 in savings, which again can be transferred out of Italy and moved to Australia.
The applicant submitted what is meant by “transportable” is not immediately apparent from the Tribunal’s reasons. In this respect, the applicant argued that the Tribunal offers no analysis of the cost and practicalities of transporting vehicles, business equipment, and furniture to Australia. The applicant argued that it is apparent from the Tribunal’s reasoning that this information formed a part of the reason for affirming the delegate’s decision. Despite this, the information that her assets were “transportable” was never put to the applicant.
The Minister submitted that, on a fair reading of the Tribunal’s reasons, it is clear that the Tribunal was referring to the applicant’s assets being transportable in the sense that furniture, vehicles and business equipment in Italy could be shipped from country to country if necessary, such that any assets or personal property of that kind did not represent significant ties to that country.
In relation to impugned finding 7, the applicant submitted that the cost or practicality of transferring the money in the applicant’s Italian bank account was never canvassed by the Tribunal. The applicant further submitted that the transferability of the applicant’s savings was not raised with the applicant by the Tribunal.
The Minister submitted that it is clear that the Tribunal was referring to the applicant’s savings being capable of being transferred out of Italy, such that her savings in that country did not represent a significant incentive for her to return. That finding, the Minister submitted, accords with common sense. The Tribunal’s common sense thought processes about the applicant’s evidence were not information that was required to be put to her for comment.
It is important to keep in mind the context of the claims made by the applicant. In support of her claims to have economic ties to Italy, the applicant put forward that her husband held significant business assets and that they also held significant funds in Italy. The Tribunal was required to consider this evidence in the context of whether that evidence supported a conclusion that the applicant’s economic ties to Italy were an incentive for her to return. In that context, it was obvious that the Tribunal would consider whether those assets and funds were only available to the applicant in Italy.
The Tribunal was not required to put to an applicant that money held in overseas accounts can be transferred or accessed from Australia. The applicant put this forward as an economic tie to Italy. It is self-evident that those funds could be transferred and there was certainly no evidence before the Tribunal which might suggest that those funds could not be transferred. If there was a reason why something as routine as a funds transfer between Italy and Australia was not possible, then it was for the applicant to explain this. It did not fall upon the Tribunal to ask the applicant why such a routine transaction could not be carried out.
Similarly, whether the applicant’s husband’s business assets were transportable (or capable of being liquidated) was a clear and obvious issue that the Tribunal would need to resolve in the context of assessing whether those assets constituted an economic incentive for the applicant to return to Italy. It was for the applicant to provide evidence as to why those assets were such an incentive.
Impugned finding 8
Impugned finding 8 is as follows:
39. In contrast, the applicant does have substantial ties here in Australia, having resided here for 3 years: she is in stable accommodation with her husband and children, she is friends with a number of international students and an elderly couple who are citizens here in Australia and does attend church in an area nearby to where she lives. Further, the applicant also has the prospect of earning a high level of wages here in Australia in the event she obtains a visa and is able to obtain employment.
In respect of the finding that the applicant had the prospect of earning a high level of wages in Australia in the context of an incentive (or lack thereof) for the applicant to return to Italy, the applicant submitted that it was never put to the applicant that $1,000 per week was a “high level of wages”, nor was it ever put to the applicant that there was any other prospect of earning a “high level of wages” in Australia.
The Minister submitted that this finding was in response to her own evidence that her husband was working in Australia and earning $1,200 per week and that she could earn approximately $1,000 per week. The Minister further submitted that it is also common knowledge that wages can be high in Australia.
It is not altogether clear whether the Tribunal was referring to the applicant’s evidence that she could earn $1,000 per week or whether she could earn a higher amount if she was permitted to remain in Australia and advance her career as a chef. In any event, the Tribunal’s statement was simply that she had the “prospect” of earning a high level of wages. Once again, that was in the context of whether this prospect was an incentive to remain in Australia. The Tribunal made a subjective assessment as to whether the prospect of earning an income as a chef was an incentive to remain in Australia based on the evidence the applicant had specifically given in respect of what she expected those wages would be. It was not required to put to the applicant for comment whether it found the amount high or low, whether it accepted she would or would not earn this amount, or whether it concluded that it was or was not an incentive to remain in Australia.
None of the impugned findings reveal any “information” which the Tribunal was required to put to the applicant. Contrary to the well-established authorities set out above, the applicant has sought to cast the Tribunal’s subjective evaluations of evidence, matters not specific to the applicant, matters which are objectively obvious, and observations which were not adverse findings or part of an adverse finding, as “information”. In the Court’s view, none of those matters constituted “information” which was required by s 359A or s 359AA to be put to the applicant.
Ground one does not establish jurisdictional error.
Ground two – irrationality
Through ground two, the applicant asserts that the impugned findings were also irrational and therefore legally unreasonable.
It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (Djokovic) and the cases cited therein).
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
…[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The correct approach, according to the High Court in SZMDS, is to enquire “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it” (at [133]). At [135], the High Court stated:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
In Djokovic at [35], it was observed:
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
The applicant in this matter submitted that, in making findings of jurisdictional facts, interim findings of fact must each have a sound basis in the evidence. Interim findings of fact which are made without a “skerrick of evidence” are liable to lead to a finding of jurisdictional error. Whilst that is true, conversely, the existence of a “skerrick of evidence” is, in itself, sufficient to dispense with such a claim (see EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130 at [73]).
The Minister submitted that each of the impugned findings involved no more than the Tribunal’s logical appraisals of the applicant’s evidence based on common sense or common knowledge. Of course, there can be dangers in such an approach. What may be deemed as “common sense” by some may in fact be neither commonly accepted nor inherently sensible. Even where such matters might be commonly accepted, designating something as “common sense” can all too easily lead to intellectually shallow reductionism and dogma.
In Webb, Anastassiou J considered notions of common knowledge and common sense (at [82]-[86]):
In my view, whether common knowledge is sufficient is affected by a number of factors, including by the specificity of the asserted fact, or subject matter, imbedded in the representation. If, hypothetically, there were a representation about a particular town in the United Kingdom to the effect that it lacked adequate drug rehabilitation services, assuming such services were necessary for the person concerned, it would be doubtful that the common knowledge of the decision-maker would encompass such detail. While a minister’s, or other administrative decision-maker’s, knowledge may encompass an appreciation of certain characteristics of the United Kingdom, at the very least that it is a constitutional democracy with a highly developed economy, it could not be assumed to also encompass knowledge of the availability of drug rehabilitation services in a particular town.
The question of whether a minister, or other administrative decision-maker, should descend to a level of detail more specific than what may be objectively expected to be part of his or her common knowledge, is not susceptible to any general rule. In Navoto v Minister for Home Affairs [2019] FCAFC 135 the Full Court of this Court (at [78]) said:
... it is unlikely that a precise test may be formulated to prescribe the circumstances in which an administrative decision-maker may rely on general knowledge or accumulated specialist knowledge: see Dekker v Medical Board of Australia [2014] WASCA 216 at [63] per Martin CJ, Newnes and Murphy JJA. That issue, where it arises, is likely to be determined by reference to all the circumstances of the case, including, amongst other factors, the nature of the decision-maker, the extent and character of the decision-maker’s specialisation, and the form of the particular knowledge relied upon by the decision-maker.
It was unnecessary in Navoto for the Court to determine whether the decision-maker, the Assistant Minister, could rely upon common knowledge or his accumulated specialist knowledge about the availability and appropriate treatment for depression and anxiety in Fiji.
Whether a decision-maker should descend to such detail in order to properly consider the representations of an applicant, in my view, depends on all the relevant circumstances of the applicant, the nature and specificity of his or her representations and to what may reasonably be expected to be within the common knowledge of a reasonably well informed decision-maker in relation to the country concerned. I agree with the view expressed in Navoto that the question of when common knowledge may or may not be sufficient is not susceptible to a precise test or formulation. I also agree that the factors identified in Navoto extracted above may have a bearing on the question of whether common knowledge is sufficient.
Within the notion of common knowledge is its counterpart, ‘common sense’. Common sense teaches us that there are limits to common knowledge. Those limits are affected by the factual questions that emerge from the representations made by an applicant, especially in relation to the level of particularity, as well as, potentially, the nature of the subject matter. If the factual questions that emerge from the representations made by an applicant concern a matter that may only be understood with the benefit of some expertise in a specialist area, common knowledge may not suffice. Likewise, if the question concerns the particular, or perhaps even idiosyncratic, circumstances that apply in a particular place, or if it pertains to the unique practices of a particular ethnic group or religious sect, common knowledge may not suffice. Thus whether common knowledge is a sufficient foundation depends to a significant extent on the factual questions posed by the representation.
Whether common knowledge will suffice must also be affected by the quality of the common knowledge. If, for example, the so called common knowledge is not knowledge at all, but rather a common or shared prejudice about a particular matter — be it as to religious belief, ethnic origin, gender, whatever the object of the prejudice may be, that is not common knowledge. And if the so called common knowledge is not knowledge at all but the product of gossip or of vilification, that too is not common knowledge. In other words, the veracity of the common knowledge is relevant.
In the Court’s view, a degree of caution should be exercised before accepting that a finding is grounded in “common sense”. Nevertheless, the Court accepts that there are some matters that are so obviously apparent that there is no utility in searching for additional verification.
Impugned finding 1
In respect of impugned finding 1, the applicant contended that the way the Tribunal reached its conclusion that €3,000 per month for a starting chef is a “high level of income” is not explained in the Tribunal’s reasons. The applicant submitted that there was no evidence as to the average wages of chefs in Italy, the average wages of anybody in Italy, or the average wages of chefs anywhere. On this basis, the applicant submitted that the Tribunal’s assessment that €3,000 per month for a starting chef was a “high level of income” appears to rise no higher than conjecture.
It was a matter for the applicant to provide evidence which would satisfy the Tribunal of the claims she was making. Her self-serving and unsupported statement was not required to be accepted uncritically by the Tribunal and the Tribunal had no requirement to make its own inquiry in respect of her claims, particularly where the applicant was given an opportunity to provide further information to the Tribunal to persuade it otherwise (Minister for Immigration and Citizenship v MZYCE [2010] FCA 767).
The applicant provided no evidence as to the average wages of chefs in Italy. She provided no evidence as to the average wages in Italy or the average wages of chefs. Her claim of €3,000 is conjecture. It was not incumbent on the Tribunal to seek out evidence on these matters. It was the responsibility for the applicant, who was represented, to provide sufficient evidence to make her case.
When asked specifically by the Tribunal how she had arrived at the figure of €3,000 per month, the applicant gave a somewhat vague response that this was the figure she had been told. This is the context in which the Tribunal’s statement that the amount seems high was made. The applicant provided no objective or independent evidence that this was the amount of money she could be expected to earn. The evidence, rather, was that this was the amount of money she anticipated she would earn, and this was based on little more than a conversation she had. This is important because the Tribunal did not reject her evidence in this respect.
Reviewing the decision as a whole, it becomes quite evident that, in fact, the Tribunal appeared to have accepted that this was the amount of money the applicant anticipated she would earn in Italy. That is made plain by the later observation at [29] where the Tribunal states:
…The applicant gave evidence that if she was to be employed as a chef in Australia her anticipated income is approximately AU$1,000 per week, which is comparable to the level of income that she anticipates she would receive in Italy at a starting wage of €3,000 per month…
Consequently, a fair assessment of the Tribunal’s reasoning is that it accepted that the applicant anticipated she would receive approximately €3,000 per month, and that while it thought this seemed high for a starting salary for a person with no experience, it was comparable with her anticipated level of income in Australia. There is no basis for finding that such a finding was irrational.
The Court is of the view that even if the Tribunal had rejected her claim that she could receive €3,000 per month, this would not have been an irrational finding. It would have been a rejection of a self-serving claim that seemed high, was unsupported by any evidence, and was based solely on a single conversation the applicant claimed to have had. In any event, as set out above, this is not what the Tribunal found.
Impugned findings 2 and 3
The applicant submitted that impugned findings 2 and 3 are confusing and circular. The applicant submitted that there is no process of reasoning in the Tribunal’s decision that indicates the evidentiary basis upon which the Tribunal concluded that the applicant was using Australia’s education system to maintain residency in Australia. The applicant submitted that it appears as though they simply state the Tribunal’s ultimate conclusion as a reason in support of that very same conclusion.
There were only two conclusions the Tribunal could reach. Either, the applicant genuinely intended to reside temporarily in Australia for the purpose of studying, or she did not. Neither conclusion would reach the threshold for irrationality. In the Court’s view, this is simply extreme disagreement with the ultimate conclusion reached by the Tribunal.
Impugned finding 4
The applicant submitted that impugned finding 4 has no basis on the evidence. The applicant argued that the Tribunal did not indicate how or where the applicant could study in Italy. Furthermore, the applicant submitted that there was no evidence that she could, in fact, study her chosen course in Italy and that her evidence was that she could not study her chosen course in Italy. The applicant accepted that the Tribunal was entitled to reject her evidence without holding evidence to the contrary but argued that it was not permitted to go further and make a positive finding of fact (such as that she could study in Italy) without any basis in the evidence.
In respect of this matter, the applicant provided unsupported evidence as to why study in Italy would be difficult for her and why study in Australia would be preferable. The Tribunal was not required to accept that evidence uncritically, particularly given it was completely unsupported and prima facie inconsistent with common experience. The Court notes the observation in Webb at [96] that “common knowledge about the country to which the applicant is to be deported may put some countries in a different position to others so far as reliance upon common knowledge is concerned”. In this sense, the Court does not accept that a finding that cooking courses are available in Tuscany is in any way controversial.
In any event, the Court does not accept that the Tribunal made the positive finding that the applicant says it did. What it actually did was engage with her evidence and claims. In that respect, it found that the applicant could undertake a cooking course in Italy. That, of course, is unassailable as a general proposition. Indeed, a contrary finding would be prima facie irrational. However, putting to one side that it is deeply implausible that there is only a singular cooking course in Tuscany, that is not what the Tribunal found. What is critical about the impugned finding is that the Tribunal goes on to engage with the specific course the applicant said is available in her area, and her specific reasons for not being able to attend that course. It considered the applicant’s evidence that the school was 45 minutes away by car and that there would be significant traffic, but found that this was not a reasonable motivation for undertaking an Australian course rather than an Italian course. The Tribunal also accepted the plausibility of the applicant’s claims about an Italian lifestyle not lending itself to work and study in the same way as it is accepted in Australia, and that the Italian courses were shorter than the Australian courses. However, the Tribunal found that, whilst those matters might be true, the applicant could nevertheless still undertake those studies in Italy and they would likely assist with gaining employment. These were clearly findings which were open on the evidence and certainly findings which are rational and logical.
Impugned finding 6 and 7
The applicant submitted that the Tribunal’s assertion that the applicant’s assets in Italy are transportable is “far from pellucid”. The applicant submitted that the only evidence as to the nature of those assets is in the form of “anodyne descriptions of “furniture”, “motor vehicles”, and “business tools and equipment””. The applicant submitted there was not a skerrick of evidence as to whether those items might be transported to Australia and the practicalities and costs of doing so. Accordingly, the applicant asserted that the Tribunal’s assertion as to the transportable nature of the applicant’s assets lacks a logical foundation.
The Court disagrees. “Transportable” is not an opaque term. All the Tribunal found is that assets held in Italy, which the applicant asserted was an economic tie to Italy, could be transported to Australia. That is just an obvious fact and clearly not an irrational finding.
The applicant further submitted that there was not a skerrick of evidence as to whether her savings might be transferred to Australia, let alone the cost or practicalities of doing so.
The Court does not accept that it was irrational for the Tribunal to find that it is possible for the applicant to transfer money from one advanced economy to another. In short, the applicant is asserting that there is no other decision maker who would have found that the applicant would be able to engage in a relatively routine transaction in a global economy.
Whatever the parameters of common knowledge and common experience may be, the Court finds that the ability to transport assets and transfer funds to Australia from a country like Italy must fall within those parameters. The applicant is essentially submitting that obvious facts are irrational. If there were any practical reasons why these assets and funds could not become available to the applicant in Australia, it fell upon the applicant to provide those reasons. It was not incumbent on the Tribunal to seek them out.
Impugned finding 8
The applicant submitted that, on the assumption that the Tribunal intended to suggest that the applicant’s prospective earnings in Australia were higher than her prospective earnings in Italy, this was contrary to the evidence. The applicant submitted that, on the only evidence before the Tribunal that spoke to expected earnings, the applicant’s anticipated earnings in Italy were higher than her anticipated earnings in Australia. The applicant submitted that there was no evidence whatsoever to suggest that the applicant had the prospect of earning a high level of income in Australia.
The applicant’s submission rests upon a false assumption that a comparison was made by the Tribunal. At no point did the Tribunal find that the applicant’s expected earnings in Australia were higher than her expected earnings in Italy. In fact, as set out above, the Tribunal expressly stated that on the applicant’s evidence, her anticipated earnings in each country were comparable. That was manifestly the case and the applicant’s assertion fails on a factual level.
Ground two does not establish jurisdictional error.
CONCLUSION
The application for review, supporting affidavits and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 7 February 2025
SCHEDULE OF PARTIES
ADG 272 of 2021 Applicants
Fourth Applicant:
ALESSIO LEKA
4
15
2