Mamun v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 419
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mamun v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 419
File number: MLG 2065 of 2018 Judgment of: JUDGE FORBES Date of judgment: 25 May 2023 Catchwords: MIGRATION - judicial review of decision of Administrative Appeals Tribunal to refuse student visa – whether applicant genuine temporary entrant – whether findings of Tribunal illogical, irrational or legally unreasonable - requirement for evident and intelligible justification for findings Legislation: Migration Act 1958 (Cth), s 65, 499
Migration Regulations 1994, clause 500.212
Cases cited: ARG15 vMinister for Immigration and Border Protection (2016) 250 FCR 109
CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
CGA15 v Minister for Home Affairs (2019) 268 FCR 362
DQM18 v Minister for Home Affairs (2020) 278 FCR 529
Ghimire v Minister for Immigration and Border Protection [2014] FCA 899
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24
Minister for Immigration and Border Protection vSabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1
Division: Division 2 General Federal Law Number of paragraphs: 134 Date of hearing: 5 May 2022 Place: Melbourne Counsel for the Applicant: Ms Finegan Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Ms Mills Solicitor for the First Respondent: The Australian Government Solicitor ORDERS
MLG 2065 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABDULLAH AL MAMUN
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
25 MAY 2023
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal dated 2 July 2018 be quashed.
2.A writ of mandamus be directed to the Administrative Appeals Tribunal requiring it to determine the Applicant’s application according to law.
3.The First Respondent pay the Applicant’s costs fixed at the scale prescribed by the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021.
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 FORBES
INTRODUCTION
This proceeding concerns an application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 2 July 2018. The decision of the Tribunal affirmed a decision of the Minister’s delegate (the delegate) not to grant the applicant a Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
In his application for review the applicant contends that the Tribunal’s decision is affected by jurisdictional error. For the reasons set out below I have decided that the decision of the Tribunal should be quashed and a writ of mandamus issued directing the Tribunal to determine the applicant’s application according to law.
BACKGROUND
The following background is derived from the detailed outline of submissions filed by each of the parties prior to the hearing and from material in the court book. Unless otherwise stated, the following matters are common ground.
The applicant is a citizen of Bangladesh who first arrived in Australia as a Temporary Student visa holder on 4 July 2008. The applicant was 26 years old at the time of his arrival. Before leaving Bangladesh the applicant had undertaken some study but he had never worked.
Since his arrival in Australia, the applicant has been granted three student visas which have enabled him to undertake and complete various VET level courses. These courses include certificate, diploma and advanced diploma courses mainly in the area of automotive mechanical technology, management, business and marketing[1].
[1] Court Book (‘CB’), p 186, Tribunal reasons at [17]
For a short period the applicant also held a Graduate Work Stream VC 485 visa which permitted him to work as a motor mechanic. Following a period of work he returned to study on an extended temporary student visa which expired in October 2016.
The applicant has returned to Bangladesh on 4 occasions since 2008.
The applicant is married. He and his wife had a child in Australia in November 2015.
In April 2016 the applicant’s wife and infant daughter returned to Bangladesh. The applicant has not returned to Bangladesh since his wife and daughter departed.
In late October 2016 the applicant enrolled in a Bachelor of Professional Accounting course through Holmes Institute with a course commencement date of 7 November 2016.
On 28 October 2016 the applicant applied for the student visa[2] which is the subject of the Tribunal’s review.
[2] CB 10
On 1 March 2017 the delegate refused to grant the visa as it was not satisfied that the applicant intends genuinely to stay temporarily in Australia and thus does not meet clause 500.212 of the Migration Regulations 1994 (the Regulations).[3]
[3] CB 81 – 87
On 17 March 2017 the applicant lodged an application for review of the delegate’s decision to the Tribunal.[4]
[4] CB 88
On 30 April 2018 the applicant was invited to attend a hearing before the Tribunal.[5]
[5] CB 94
On 14 May 2018 the applicant’s migration agent provided submissions and various supporting documents to the Tribunal.
The applicant attended the hearing before the Tribunal on 21 May 2018 to give evidence and present arguments relating to the issues arising in his case. He was assisted by his migration agent and an accredited interpreter in the Bengali and English languages.[6] At the hearing, the applicant also completed a Student Visa – GTE Questionnaire.[7]
[6] CB 166
[7] CB 169 – 174
On 2 July 2018 the applicant was notified of the Tribunal’s decision. In its decision the Tribunal affirmed the decision of the delegate that the applicant did not meet the criteria under cl 500.212 of schedule 2 to the Regulations. The reasons for the Tribunal’s decision are discussed later in this judgment.
RELEVANT LEGISLATION
An applicant for a Subclass 500 (Student) visa must meet certain criteria at the time of their application, as set out in Schedule 2 to the Regulations. At the relevant time cl 500.212 of the Regulations provided as follows:
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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
In considering whether an applicant satisfies cl 500.212(a) the delegate (and later the Tribunal) was required to have regard to Direction No 69, Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications[8], made pursuant to s 499 of the Act.
[8] Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications, s 499 of the Migration Act 1958 (Cth)
Direction No 69 requires that regard be given to a number of specified factors in relation to, amongst other things, the applicant’s circumstances in his home country, his potential circumstances in Australia, the value of the course to the applicant’s future and the applicant’s immigration history (including both his visa and travel history). Clause 14(b)(iii) of the Direction provides that in considering the applicant’s immigration history, decision makers must have regard to the amount of time the applicant has spent in Australia and whether the student visa may be used primarily for maintaining ongoing residence.
Direction 69 is to be applied consistently with cl 500.212 and it is intended to provide guidance to decision makers when considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant (GTE) criterion. Thus, it is to be used as a guide rather than a checklist[9].
[9] Ghimire v Minister for Immigration and Border Protection [2014] FCA 899 at [3]
TRIBUNAL’S DECISION
At [6] of its reasons, the Tribunal correctly identified that its task was to determine whether the applicant was a ‘genuine applicant for entry and stay as a student’ as required in cl 500.212, including whether the applicant met the GTE criterion having regard to the matters set out in cl 500.212 and the factors in Direction 69. The Tribunal summarised the specified factors in [8]-[9] of its reasons and confirmed they were to be used for guidance rather than as a checklist.
The Tribunal then structured its consideration of relevant considerations under various headings.
Applicant’s immigration history
At [12] of its decision record, the Tribunal had regard to cl 13 and 14 of Direction 69 in considering the applicant’s immigration and travel history.
In particular, the Tribunal observed that the applicant had returned to Bangladesh on four occasions since arriving in Australia in 2008 and that the last time he had done so was in 2013. The Tribunal also observed that Australia is the only country the applicant had visited outside of Bangladesh and that he had been compliant with migration laws and relevant visa conditions.
The Tribunal expressed concerns “about the significant amount of time the applicant has spent in Australia and that he did not depart with his wife and young daughter when they returned to Bangladesh in 2016”.[10]
[10] CB 185
Taking into account the length of time the applicant had spent in Australia and the qualifications he had completed the Tribunal found at [12] that the applicant was using the student visa to maintain ongoing residence.
Applicant’s circumstances in his home country
The Tribunal had regard to clause 9 of Direction 69 which pertains to the applicant and his circumstances in Bangladesh.
At [13] of its reasons the Tribunal noted that the applicant had completed secondary schooling in Bangladesh in 2001 and had undertaken an International Diploma in Computer Studies in 2003 and an International Advanced Diploma in Computer Studies in 2004. He had not completed these studies and had not worked before coming to Australia on a student visa in 2008.
Further at [13] the Tribunal noted that the applicant’s wife and young daughter had returned to Bangladesh permanently at the end of 2016 and that the applicant had remained in Australia to study a Bachelor of Professional Accounting at a cost of $43,200.
At [14] the Tribunal recorded the applicant’s evidence that his parents, three sisters, wife and daughter live in Bangladesh and that another sister is married and lives in Italy. The applicant’s evidence was that his father runs a distribution business and that his mother is a housewife.
The Tribunal records that it was told by the applicant that he had been able to manage personal relations with his parents, sisters, wife and young daughter back in Bangladesh, including by making contact multiple times a day to his wife and daughter and 3 to 5 times a week to his parents via telephone and social media applications such as Facebook, FaceTime and WhatsApp.
In the final sentence of [14] the Tribunal found that despite the applicant’s wife and daughter having returned to Bangladesh in 2016, it did not accept that this would serve as a significant incentive for the applicant to return to his home country.
Applicant’s potential circumstances in Australia
The Tribunal considered the factors set out in clause 11 of Direction 69, regarding the applicant’s potential circumstances in Australia.
At [15] the Tribunal records the applicant’s claim that he has no significant ties in Australia since his wife and daughter returned to Bangladesh permanently in 2016 and that he just wanted to complete his course and return home. Notwithstanding, the Tribunal expresses concern that the applicant’s wife and daughter could potentially return to Australia at any time and that that possibility would present as a strong incentive for the applicant to remain in Australia beyond the completion of his current course of study.
As to the applicant’s current course of study, the Tribunal noted at [16] that the applicant had commenced a Bachelor of Professional Accounting on 7 November 2016. The applicant informed the Tribunal that the course was about accounting skills, income statements, balance sheets and business finance and that the course would be helpful to run a business in the future. An interim statement of results submitted to the Tribunal revealed that the applicant had successfully passed the majority of his subjects at the time of the hearing.
At [17] the Tribunal notes that the applicant had completed a range of VET sector courses since arriving in Australia including certificate, diploma and advanced diploma courses in the area of automotive mechanical technology, management, business and marketing. Certificates to evidence completion of these courses was before the Tribunal.
Based on the evidence of his prior successful studies, the Tribunal found at [17] that the applicant had completed relevant studies required to return to Bangladesh to start up his own motor mechanic business and to assist his father in the running of his distribution business. The Tribunal found that the student visa is being used to maintain ongoing residence in Australia.
At [18] the Tribunal noted the applicant’s evidence that he currently works 10 to 15 hours per week for Jim’s Mowing and earns approximately $400 per week. He lives in shared accommodation, in respect of which he contributes $350 per month toward rent. The Tribunal noted that the applicant relies on financial support from his father for his course fees. In respect of this particular consideration, the Tribunal found that the applicant’s economic circumstances within Australia would present as a strong incentive for the applicant not to return to his home country.
At [19] of its reasons the Tribunal recorded various statements made by the applicant in his “Genuine Temporary Entrant” statement dated 14 May 2018. Relevantly, the applicant stated that:
(a)he wanted to start up a motor workshop business in Bangladesh;
(b)his studies in Australia will enable him to assist his father;
(c)his wife and daughter live in Bangladesh with his parents;
(d)his immediate family needs his support;
(e)staying away from his daughter is painful;
(f)he is making a sacrifice so that he can make a better future for his family;
(g)his wife is a full-time teacher in a government school;
(h)he only had a further 6 units of study to complete his business accounting course; and
(i)he intended to return to Bangladesh at the completion of the course to start up his future endeavours.
In the final sentence of [19] the Tribunal concludes:
Although the applicant has made a range of statements in his GTE statement the Tribunal is concerned that the student visa programme is being used to circumvent the intentions of the migration programme
Value of the course to the applicant’s future
From [20] of its decision record, the Tribunal also considered the factors set out in clause 12 of Direction 69, which pertain to the value of the course of study to the applicant’s future.
As stated above, the applicant stated to the Tribunal that upon his return to Bangladesh he plans to run his own motor mechanic business (for which his parents already had the land available) and to assist his father in the running of his distribution business. The applicant informed the Tribunal that the Bachelor of Professional Accounting (which was nearly 70% complete at the time of the hearing) would be valuable to assist him to do these things. The applicant stated that the business accounting degree would make the business better.
At [21] of its reasons the Tribunal records that the applicant also provided the Tribunal with what it acknowledged was a comprehensive written business plan for the future. That business plan included a vision statement, mission statement, keys to success, start-up summary and financial needs, legal requirements, service description, marketing strategy and other items. The applicant stated that he expected to earn approximately AUD$50,000 once he put the business plan into action.
However, at [21] the Tribunal found that the applicant’s current course would not assist him to obtain employment or improve his employment prospects back in Bangladesh.
At [22] the Tribunal expressed concern that the applicant did not depart Australia permanently in 2016 with his wife and daughter, despite having already gained the relevant skills and qualifications required to implement his future plans in Bangladesh. The Tribunal found that having already gained the relevant skills and qualifications to return, the applicant intends to stay in Australia.
Having considered each of the requisite criteria, at [24]-[25] the Tribunal concluded in the circumstances that it was not satisfied that the applicant intends genuinely to stay temporarily in Australia and does not meet cl 500.212(a). Accordingly, the delegate’s decision not to grant the applicant the visa was affirmed.
PROCEEDINGS IN THIS COURT
On 17 July 2018 the applicant applied to this Court for judicial review of the Tribunal’s decision.
On 19 November 2019 a Registrar of this Court made orders to prepare the matter for final hearing including that the applicant file and serve any amended application, court book materials and written submissions. The Minister was also directed to file and serve written submissions.
The applicant filed an amended application on 4 April 2022 which contained five grounds of review, as follows (particulars omitted):
(1)The Second Respondent erred in finding that the Applicant's wife and child returning to Bangladesh is not a significant incentive for the Applicant to return home, and in doing so the Second Respondent was irrational and illogical in its reasoning.
(2)The Second Respondent's decision was unreasonable and failed to take into consideration the materials and evidence before it in support of the claim that the Applicant has a desire to live with his wife and child.
(3)The Second Respondent took into account irrelevant considerations, namely giving weight to a hypothetical circumstance unfounded in fact or evidence. In doing so the second respondent had an improper basis for making this finding, or alternately, was irrational and illogical in its reasoning.
(4)The Second Respondent erred in finding that the $400 per week wage was a strong financial incentive for the Applicant to remain in Australia, in circumstances where the Applicant spent over $43,200 on the prospective course and had already secured premises in his home country to commence his business, and in making this finding the Second Respondent was irrational and illogical in its reasoning.
(5)The Second Respondent erred in finding that the Bachelors of Professional Accounting will not assist the Applicant in his future employment prospects, and in doing so the Second Respondent was irrational and illogical in its reasoning.
In summary, the first 3 grounds concern the Tribunal’s reasoning with respect to the applicant’s relationship with his wife and child. The applicant submits that each of these grounds have the same level of materiality because they go to the central question of whether the applicant intended to stay in Australia permanently or temporarily. The applicant submits that error in relation to any of the impugned findings of the Tribunal could have resulted in a different outcome on the review.
The fourth ground concerns the Tribunal’s reasoning regarding the applicant’s financial position in Australia and the fifth ground concerns the Tribunal’s reasoning regarding the current course of study undertaken by the applicant and how it would contribute to his future employment prospects.
An outline of submissions was filed by the applicant on 7 April 2022. The Minister filed an outline of submissions on 21 April 2022.
The matter came before me for hearing on 5 May 2022. Ms Finegan of counsel appeared for the Applicant and the Minister was represented by Ms Mills of counsel. Each of the parties relied on their written outline of submissions and developed those submissions orally.
RELEVANT PRINCIPLES
Each of the grounds advanced by the applicant seeks to impugn the Tribunal’s findings and/or the reasoning which led to those findings on the basis that they are illogical, irrational or legally unreasonable. In addition, in relation to ground 3, the applicant contends that the Tribunal’s finding that the applicant’s wife and daughter might potentially return to Australia involved consideration of an irrelevant matter and/or was made without an evidentiary basis.
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error. An illogical or irrational decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn[11].
[11] Minister for Immigration and Border Protection vSabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ)
Illogicality and irrationality do not solely arise in respect of a decision maker’s ultimate conclusion or decision. Both may also arise in respect of findings or reasoning leading to the ultimate conclusion or decision, albeit the overarching question is whether the decision is affected by jurisdictional error[12].
[12] Minister for Immigration and Citizenship v SZMDS(2010) 240 CLR 611; [2010] HCA 16 at [132] (Crennan and Bell JJ). See also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [150]-[156] (Robertson J); ARG15 vMinister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [47] (Griffiths, Perry and Bromwich JJ); CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 at [58]-[61] (Murphy, Mortimer and O’Callaghan JJ)
A decision might be shown to be affected by jurisdictional error if there is no logical connection between the evidence and the inferences drawn or there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion[13].
[13] MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72 at [22] (Besanko, Farrell and Thawley JJ)
However, to demonstrate jurisdictional error on the basis that the decision‑maker engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds, it is not sufficient to show that the question of fact was one in respect of which reasonable minds might differ[14].
[14] Minister for Immigration and Citizenship v SZRKT (2013) FCR 99 at 137 [148] (Robertson J); [2013] FCA 317
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] Crennan and Bell JJ pointed out that “not every lapse in logic will give rise to jurisdictional error” and that a court should be slow to interfere. At [131] their Honours said of a complaint of illogicality or irrationality which was said to lie in the process of reasoning:
“[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.
True irrationality must be shown. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made[15]. A finding will not be irrational where it falls within the decision-maker’s “area of decisional freedom”[16].
[15] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ
[16] See Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [7] (Allsop CJ)
In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at (47) Griffiths, Perry and Bromwich JJ observed that (citations omitted):
“[F]or a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or rationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the enquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact-finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT[17] at [151], the overarching question is whether the decision was affected by jurisdictional error.”
[17] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
As to the reasonableness of a decision, there is a legal presumption that the legislature intended that statutory discretionary powers be exercised reasonably[18].
[18] Li at [24]-[29] per French CJ, [63]-[68] per Hayne, Kiefel and Bell JJ and at [88]-[92] per Gageler J
Where reasons are given for the exercise of a discretionary power, the Court ordinarily looks to those reasons to assess the reasonableness of the exercise of power[19]. The decision may be reviewed against the standard of reasonableness by reference to the reasons given for a decision and also by reference to the outcome[20].
[19] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh) at [44]-[47]
[20] Li at [68] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J
A finding of legal unreasonableness will invariably be fact dependent and requires careful evaluation of the evidence[21].
[21] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [84]; Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42]
The evaluation of evidence and arguments requires a decision-maker to engage in what has been described by the Full Court in a number of cases as “an active intellectual process” with the “relevant matters or criteria”[22]. However, an unduly narrow focus on whether the Tribunal engaged in an “active intellectual process” risks the Court slipping into a merits review of the decision.
[22] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [35], [46] (Griffiths, White and Bromwich JJ); CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131; [2019] FCAFC 155 at [76] (Allsop CJ, Kenny and Snaden JJ)
Nonetheless, findings require a probative basis and “some intellectual engagement that is beyond stereotyping and speculation”[23].
[23] DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 at [53] (Bromberg, Mortimer and Snaden JJ)
Ground 1
By Ground 1 the applicant contends that in purporting to make an assessment of whether the applicant intends genuinely to stay temporarily in Australia, the Tribunal erred in finding at [14] of its reasons that the applicant’s wife and child returning to Bangladesh is not a significant incentive for the applicant to return home. The applicant contends that in so finding the Tribunal engaged in irrational and illogical reasoning, which no rational or logical decision‑maker could arrive at on the same evidence.
The applicant also seeks to impugn the Tribunal’s finding on the basis that it reveals a fundamental failure by the Tribunal to intellectually engage with or to evaluate the evidence before it.
As described above, at [13] the Tribunal found that the applicant’s wife and young daughter returned to Bangladesh permanently at the end of 2016. At [14] the Tribunal recorded parts of the applicant’s evidence including that his parents, three sisters, wife and daughter live in Bangladesh and that another sister is married and lives in Italy. The applicant’s evidence was that his father runs a distribution business and that his mother is a housewife. The applicant’s wife and daughter live with his parents. The Tribunal records that it was told by the applicant that he had been able to manage personal relations with his parents, sisters, wife and young daughter back in Bangladesh, including by making contact multiple times a day to his wife and daughter and 3 to 5 times a week to his parents via telephone and social media applications such as Facebook, FaceTime and WhatsApp. The evidence recorded at [14] does not appear to have been questioned or rejected by the Tribunal.
The applicant submits that the Tribunal’s finding is directly converse to the evidence before it. The applicant contends that the implicit premise of the Tribunal’s finding is that the applicant’s relationship with his wife and child is so insignificant that it would give him no reason to return to them in Bangladesh. It is submitted that such a finding is simply arbitrary and lacking in any intelligible or evident justification. The applicant also points to the absence of any reasoning for reaching a conclusion which appears to have no evidentiary basis.
It is submitted on behalf of the applicant that the permanent relocation of the applicant’s spouse and infant child to Bangladesh cannot be anything but a significant incentive for him to return home. It is submitted that acting logically and rationally the Tribunal should have made a finding to that effect and that it had no sound justification to conclude otherwise.
On the other hand, the Minister submits that the following considerations rationally informed the Tribunal’s finding:
(a)the Tribunal’s concern that the applicant did not depart with his wife and young daughter when they returned to Bangladesh in 2016 [12];
(b)the Tribunal’s concern that the applicant had spent a significant amount of time in Australia, had not returned to Bangladesh since 2013 and not at all since his wife and young daughter had returned permanently in 2016 [12];
(c)the applicant’s evidence that he had been able to manage personal relationships with his family including his wife and young daughter who he contacted multiple times a day by telephone or social media applications [14]; and
(d)the applicant’s circumstances in his home country including that he had not worked in Bangladesh before coming to Australia [13].
The Minister reminded the Court that paragraph 9(d) of Direction 69 requires the Tribunal, when considering the applicant’s circumstances in the home country, to have regard to the extent of the applicant’s personal ties to their home country - for example family, community, employment - and whether those circumstances would serve as a significant incentive to return. It is submitted that the relevant consideration is not the applicant’s expressed intention but rather whether the applicant’s circumstances would serve as a significant incentive to return to the home country. In any event, the Minister submits that the applicant cannot point to any evidence which supports the submission that the applicant had a clear intention to follow his wife and daughter when his course was completed.
As to the applicant’s submission that the Tribunal’s finding lacked any evident reasoning, the Minister submits that the decision should not be viewed with an eye keenly attuned to error[24]. The Minister submits that the Tribunal’s finding at [14] should not be read in isolation from the rest of the Tribunal’s decision and reasons. It is submitted that when the reasons are read fairly and as a whole, the Court should conclude that each of the considerations set out above constituted an evident and intelligible justification for a finding which was open to the Tribunal on the available material. The Minister submits that the Court need only be satisfied that the Tribunal took into account relevant considerations and made a finding which was open to it[25], even if other reasonable minds might differ.
[24] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
[25] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24 at 48
In the circumstances, the Minister submits that the Tribunal’s finding was not unreasonable, illogical or irrational.
Consideration
While findings must have an evident and intelligible justification[26], the applicant properly concedes that there is a high threshold for legal unreasonableness. The standard is high, and the decision must be one which no rational or logical decision-maker could arrive at on the same evidence[27].
[26] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]
[27] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124],[130]
The question in the instant case is whether the Tribunal’s finding, that the applicant’s wife and child returning to Bangladesh is not a significant incentive for the applicant to return home, crosses the very high threshold required to establish illogicality, irrationality or legal unreasonableness.
In my view the finding does cross that threshold and in so finding the Tribunal fell into jurisdictional error. The error affected the conclusion reached by the Tribunal on its review and is material.
In my view, even when read as a whole and without an eye attuned to finding error, the finding is inexplicable and is not logically or rationally supported by the evidence or a pathway of engagement with that evidence.
The evidence is that the applicant’s wife and child returned to Bangladesh on a permanent basis shortly after the child was born. They currently live with his parents. The applicant gave evidence that he has no significant ties in Australia since his wife and daughter returned to Bangladesh permanently in 2016 [15], that he is in contact with his wife and daughter multiple times per day [12], that he wants to complete his course and return home [15], that he is living in shared accommodation while he studies [18], that there is no reason for him to stay in Australia after completing his current course as his wife and daughter are living in Bangladesh [19], that his immediate family needs his support [19], that staying away from his daughter is painful and he is making a big sacrifice so that he can make a better future for his family [19]. The applicant also gave evidence that his wife has a full‑time teaching position in a government school in Bangladesh.
I agree with the applicant’s submission that the relevant finding is converse to that evidence. Although the evidence of the applicant is recorded in the decision, none of it appears to have been expressly rejected. The reasons of the Tribunal raise no issue about the credit of the applicant. The relevant finding suggests an implicit rejection of the applicant’s position but the finding is not supported by any pathway of reasoning which discloses an engagement with the evidence or explains why the presence of the applicant’s immediate family in Bangladesh would not be a substantial incentive for him to return.
The Court should be slow, but not unwilling, to find legal unreasonableness. In finding ground one made out, the Court is not descending into a merits review. Rather there is in my view a logical disconnect between the evidence and the Tribunal’s finding for which there is no evident or intelligible justification or explanation.
Ground 2
Ground 2 is related to Ground 1 and contends that the Tribunal’s decision was unreasonable as it failed to give appropriate consideration to a relevant consideration, namely the fact that the applicant has a desire to live with his wife and child as a family unit. The applicant contends that the fact that the applicant’s wife and child had returned home to Bangladesh permanently weighs strongly in favour of a finding that the applicant would also return to Bangladesh as soon as his studies were completed.
The applicant’s case is that the Tribunal was required by clause 9 of Direction 69 to have regard to the applicant’s personal ties to his home country. The applicant submits that a relevant consideration in determining that matter, includes whether the applicant, his wife and child want to live together as a family unit. The applicant submits, however, that the Tribunal did not turn its mind to this consideration or, if it did so, it did not give the matter “proper, genuine and realistic consideration” or did not engage in an “active intellectual process” in relation to probative evidence.
The applicant submits that the evidence before the Tribunal plainly supports the conclusion that the family wants to live together as a family unit. That evidence included the facts that the applicant and his wife are married, that the wife stayed in Australia with the applicant for 2 years before she departed with their newborn daughter, that the daughter was born in Australia and remained in Australia for 5 months until the wife and daughter departed as required by their visas. It also includes the various statements made in the applicants GTE statement which are recorded at [19] of the reasons.
The Minister submits that this ground should fail because the applicant does not refer to any express claim made by him before the Tribunal that he wanted to live together with his wife as a family unit. It was therefore not a specific matter about which the Tribunal was required to turn its mind or make a finding.
The Minister also submits that, in any event, the Tribunal did consider the applicant’s desire to be close with his family. It is submitted that the Tribunal considered the applicant’s claims that he intended to return home to his family after the conclusion of his course, his claim to have no significant ties in Australia since his wife and daughter returned to Bangladesh permanently and the applicant’s statement there was no reason for him to stay in Australia after completing his course. The Minister refers to [19] of the reasons where the Tribunal referred to the applicant’s statement and the various claims made by the applicant about his intention to return to be close to his family.
Having regard to those matters, the Minister submits that the Tribunal did not omit to consider the applicant’s close ties with his wife and child and his desire to live with them as a family unit. It is submitted that the reasons of the Tribunal self-evidently reveal that it gave the issue proper, genuine and realistic consideration and that it engaged in an active intellectual process. The Minister submits that having done so, the weight the Tribunal gave to the consideration was entirely a matter for it and that the applicant is seeking impermissible merits review.
Consideration
In my view, having regard to the evidence before the Tribunal, the question of whether the applicant wished to live with his wife and child in a family unit was a consideration relevant to the applicant’s personal ties to his home country.
The applicant has pointed to evidence which supports the conclusion that the family intends to live together as a unit. I will not repeat that again here. The evidence of the applicant’s wife was that she did not have any plans to stay in Australia, that she and her husband had agreed that she would get a job in the teaching profession in Bangladesh while he finishes his degree in accounting. In her statement, the applicant’s wife said that she expected the applicant to finish his degree and return to Bangladesh as she and her daughter missed him and his company.[28] There is no evidence of marital dysfunction or evidence which might reasonably cause the Tribunal to doubt the legitimacy of the parties’ marriage.
[28] CB 154
Here, the Tribunal recorded the applicant’s evidence, including the statements made in his GTE statement and then concluded at [19] that it nonetheless was “concerned that the student visa programme is being used to circumvent the intentions of the migration programme”. The cause for that concern and the probative evidence on which it is based is not apparent.
The Court accepts that the weight to be given to a relevant consideration is a matter for the Tribunal. However, as I mentioned in relation to ground one, the applicant’s evidence was not expressly rejected, there was no finding that he was an unreliable witness or that he was lacking in credit..
If the Tribunal did turn its mind to the issue, its reasons do not reveal any proper, genuine and realistic consideration of it or an active intellectual engagement with evidence which was probative of the issue. The reasons did not reveal inconsistencies in the evidence or any countervailing considerations which weighed against the applicant. The Tribunal appears to have recorded the evidence before it but not engaged in any real assessment of its veracity. In my view the statutory task of the Tribunal is incomplete.
I am satisfied that Ground 2 is made out and that the Tribunal fell into jurisdictional error.
Ground 3
By Ground 3 the applicant claims that at [15] of the Tribunal’s decision the Tribunal improperly gave weight to a hypothetical, namely that the applicant’s wife and daughter could potentially return to Australia at any time. The principal attack on this finding is that the Tribunal arrived at it without any proper basis in fact or evidence.
The applicant submits in the alternative that in reaching this finding the Tribunal was irrational or illogical in its reasoning.
At paragraph [15] the Tribunal stated:
“The Tribunal is concerned that the applicant’s wife and daughter could potentially return to Australia at any time. The Tribunal considers this would present as a strong incentive for the applicant to remain in Australia beyond the completion of his current course of study.”
First, the applicant submits that the reasoning of the Tribunal is premised on a hypothetical situation which cannot realistically manifest. The applicant submits that it is implicit in the Tribunal’s finding that the applicant’s wife and daughter could return at the time of their choosing. However, as residents of Bangladesh it is submitted that the applicant’s wife and daughter have no automatic right of entry to Australia and that any entry to Australia is at all times subject to the administrative arm of the Australian government granting them a visa.
Furthermore, the applicant submits that the hypothesis advanced by the Tribunal had no proper basis in fact or evidence. In support of this submission, the applicant points to evidence before the Tribunal that the applicant’s wife and daughter had returned to Bangladesh permanently in late 2016. Since that time the wife has secured a teaching position in a government school in Bangladesh. The wife and daughter do not have valid visas to enter Australia again. There was no evidence of any travel plan for them to return to Australia or other evidence of any intention on their part to do so. There is no evidence of the applicant’s wife having made a visa application, no evidence that the wife might have prospective employment in Australia and no evidence of any other valid reason for her to enter Australia. The wife’s evidence was that the family would reunite in Bangladesh after the applicant’s studies had been completed.
The applicant submits that the Tribunal seized hold of and placed weight on a hypothetical to support the position that the applicant was not genuinely intending to stay in Australia temporarily. The applicant submits that the Tribunal’s conclusion and the hypothetical reasoning leading to it demonstrated irrational or illogical reasoning. The applicant contends that in circumstances where there was no evidence to suggest that the hypothesis would eventuate, the Tribunal did not provide any evidence and intelligible justification for concluding that the potential return of the wife and daughter would serve as a “strong incentive” for the applicant to remain after the completion of his studies.
The Minister submits that there is no substance to this ground and argues that the Tribunal’s finding has been mischaracterised by the applicant.
The Minister submits that the Tribunal found no more than that the applicants wife and daughter could potentially return to Australia at some time in the future. It is submitted that the Tribunal did not find that they would return or that there was a significant probability that they would or that their return was any more than a possibility. The Minister contends that properly construed, all the Tribunal did was to identify a possibility and to conclude that if it eventuated that circumstance would present as a strong incentive for the applicant to remain. It is submitted that the Tribunal did not identify the possibility per se as the strong incentive - rather that the strong incentive to remain would arise if the hypothetical came to pass.
The Minister submits that Direction 69 requires the Tribunal to consider the applicant’s potential circumstances in Australia, a process which necessarily invites the Tribunal to consider hypotheticals. Accordingly, it was open to the Tribunal to consider a hypothetical return to Australia by the applicant’s wife and daughter in the discharge of its statutory task. It is submitted that if the applicant’s family was to return to Australia that would evidently present as a strong family tie to Australia and a strong reason for him to remain after his study concluded. The Minister also submits that the hypothesis is a sound one having regard to the fact that the applicant’s wife and daughter had previously lived in Australia.
Consideration
As stated above, the Minister contends that the Tribunal’s finding at [15] should be read as a conclusion that the strong incentive for the applicant to remain in Australia would only arise if the hypothetical return to Australia by the wife and daughter actually materialised. Respectfully, I disagree. In my view, the Tribunal found that it was their “[potential] return to Australia at any time” which presented as the strong incentive for the applicant to remain. In my view, that was an unsound hypothesis which did not reasonably present itself for consideration on the material before the Tribunal.
I accept the Minister’s submission that Direction 69 logically requires the Tribunal to engage in a measure of speculation about future matters and to turn its mind to hypothetical circumstances. I accept that consideration of the “applicant’s potential circumstances” invites such an exploration.
However, hypotheses must be reasonably posed and be based on some realistic possibility as opposed to errant speculation. If a “concern” is to be expressed by the Tribunal about a possible future event, the concern must be soundly based. If the reference event is either not possible or it is so remote or conditional or devoid of evidentiary support that it is unlikely to see the light of day, it cannot reasonably underpin a concern. Indeed, for a hypothesis to constitute a “strong incentive” for an applicant to remain, as found by the Tribunal, it must present as a realistic possibility which is capable of motivating the applicant.
The Tribunal’s concern that there is a potential for the applicant’s wife and daughter to return at any time seems not to have regard to the fact that the wife and daughter presently have no authority to enter the country and simply cannot return at will. The evidence as recorded by the Tribunal in its reasons does not support the hypothesis or give rise to any real possibility that the wife and child intend to return to Australia or could or might do so. The Tribunal does not adequately identify the reason for its concern.
In the circumstances, I accept the applicant’s submission that the hypothesis advanced by the Tribunal had no proper basis in fact or evidence. In finding that the potential return of the wife and daughter at any time was a strong incentive for the applicant to remain in Australia beyond the end of his studies, the Tribunal engaged in illogical reasoning. The finding was legally unreasonable and amounted to jurisdictional error. The error was material because it went to a critical consideration under Direction 69 and a contrary finding might have resulted in a different result on the review.
Ground 4
I have found material jurisdictional error in relation to the related Grounds 1-3 above. On the basis of that finding the applicant is entitled to the relief sought in his application and it is not strictly necessary for me to deal with the other grounds. However, I propose to deal with the remaining grounds 4 and 5, in the event that I have wrongly decided the earlier matters.
By Ground 4 the applicant asserts that the Tribunal again erred by engaging in irrational and illogical reasoning by finding that wages of $400 per week are a strong financial incentive for the applicant to remain in Australia.
At [18] of its reasons, the Tribunal stated:
“Considering the applicant did not work back in Bangladesh before coming to Australia and in Australia the applicant is currently earning approximately AUD$400 per week, the Tribunal finds that the economic circumstances within Australia of the applicant would present as a strong incentive for the applicant not to return to his home country.”[29]
[29] Tribunal reasons at [13]
The applicant submits that the Tribunal did not provide any evident and intelligible justification for this reasoning. Indeed, the applicant submits that the finding that a $400 per week wage is a strong incentive to remain in Australia is absurd and irrational when considered in light of all the evidence, including the significant financial investment in financing his studies in Australia and the potential income to be earned from the applicant’s planned motor mechanic business in Bangladesh.
The applicant submits that the evidence relevant to consideration of the applicant’s financial circumstances includes the following:
(a)he earns approximately $400 per week from part-time mowing work, the yearly wage of approximately $20,800;
(b)he pays approximately $350 per month as a contribution toward the expenses of his shared accommodation;
(c)the applicant relies upon his father’s support to pay for the fees associated with his course, which total $43,200;
(d)the applicant provided the Tribunal with a comprehensive business plan which supported his projection of earning $50,000 per year upon his return to Bangladesh; and
(e)there was evidence before the Tribunal that the applicant’s father had set aside a location for the applicant’s business in Bangladesh.
The applicant’s submission is that in light of that evidence no other rational or logical decision-maker could have reached the same conclusion. The applicant submits that the Tribunal placed strong weight on this finding, such that its error materially affected the conclusion that the Tribunal reached on its review of the delegate’s decision.
The Minister submits that the evidence before the Tribunal was not that the applicant was spending money to maintain his position of study in Australia, but rather the applicant’s family was incurring those costs as an investment for the applicant’s future. The Minister submits that the family’s investment in the applicant’s future is not inconsistent with there being an economic advantage for the applicant to remain in and earn an income in Australia. Furthermore, the Minister submits that the applicant’s income in Australia must be seen in the context of him not having worked previously in Bangladesh.
The Minister submits that the Tribunal should be taken to have considered all of the relevant evidence as it is recorded in the reasons. The Minister submits, as it has done in relation to other grounds, that the weighing of evidence is a matter for the Tribunal and that jurisdictional error does not arise simply because minds might differ as to the conclusions reached and that evidence.
Consideration
In my view, an error which has permeated the reasons generally, strikes again with the Tribunal’s reasoning here. While I accept that a high threshold must be met before finding jurisdictional error on the grounds of irrationality, illogicality or legal unreasonableness, a finding by the Tribunal must be assessed against the evidence and the pathway of reasoning. In circumstances where a decision at first glance appears irrational when considered against the whole of the evidence, proper reasoning will go a long way to explain how the Tribunal arrived at its finding and will almost certainly avoid a finding of jurisdictional error. But where a conclusion is reached which is so at odds with the whole of the evidence and a pathway of reasoning is absent, the Court can find jurisdictional error.
It is plain that the Tribunal gave considerable weight to its finding that the applicant’s economic circumstances within Australia present as a “strong incentive” for the applicant not to return to Bangladesh. The weight accorded to this finding is a matter for the Tribunal, but identifying this factor as a strong incentive only elevates the requirement for the Tribunal to reveal its reasoning where, on the whole of the evidence, the finding does not otherwise find support. The finding of strong incentive in the absence of reasoning in my view reveals a failure on the part of the Tribunal to have properly engaged with the evidence.
In my view, this ground is also made out and the error is material. Had a different finding been reached on this issue, there is a realistic possibility that a different decision might have been made on the decision under review.
Ground 5
Finally, by Ground 5 the applicant asserts that the Tribunal erred in finding that a Bachelor’s Degree in Professional Accounting will not assist the Applicant in his future employment prospects in Bangladesh.
Paragraph [21] of the Tribunal’s reasons state:
“The Tribunal finds that the applicant’s current course will not assist the applicant to obtain employment or improve his employment prospects back in Bangladesh”.
As stated earlier, the applicant gave evidence that it was his plan to return to Bangladesh after the completion of his studies to start a motor mechanic business. He gave evidence that he had a location for the business and provided the Tribunal with a copy of his business plan. He also indicated that he planned to help his father in his distribution business.
The applicant submits that accounting is a core element of running any business where monies are exchanged for services. While conceding that it may not be necessary to complete a bachelor’s degree in accounting to run a motor mechanic business, the applicant submits that it is “certainly beneficial, and will certainly improve business from an economic perspective, including reducing the overhead cost of engaging an independent accountant”[30]. The applicant also submits that by attaining a bachelor qualification, which is a high level of education than previously attained, he will be viewed more seriously by third parties such as stakeholders and banks.
[30] Applicant's outline of submissions at [47]
The applicant submits that the finding that this qualification will not assist the applicant to obtain employment or improve his employment prospects in Bangladesh was an arbitrary and absurd finding, and not one that any other rational or logical decision-maker could have made.
The Minister, on the other hand, submits that this ground seeks impermissible merits review.
The Minister submits that the Tribunal acknowledged and had regard to the comprehensive written business plan provided by the applicant. It is also submitted that the Tribunal took into account the applicant’s evidence regarding the value he believed the current course would bring to his future plans, including opening his own motor mechanic business and assisting his father in the running of his distribution business. Furthermore, the Minister notes that beyond those plans, the applicant made no assertion that he planned to seek employment in Bangladesh nor was there any evidence that he might do so.
The Minister also submits that even if the concept of employment or employability is read to embrace self-employment in an owner-operator business, there was nonetheless a factual basis underpinning the Tribunal’s finding. Where the Tribunal took into account the applicant’s previous study history which included a Certificate III in Automotive Mechanical Technology, Certificate III in Business, Certificate IV in Business, Diploma of Management, Deployment of Automotive Management, diploma of Marketing and Advanced Diploma of Marketing, the Minister submits that it was open to the Tribunal to conclude that the applicant had already gained the relevant skills and qualifications to run a motor mechanic business and that the bachelor course would not further assist him to obtain employment or improve his employment prospects.
Consideration
In relation to this ground, the relevant consideration for the Tribunal was whether the current course of study would assist the applicant to obtain employment or improve his employment prospects back in Bangladesh. The issue was not whether the accounting degree will prove useful to the applicant or whether it will be beneficial to the performance of his business or his father’s business or result in efficiencies or cost savings for those businesses. It is not to the point that accounting is a function which is common to all businesses. Self-evidently a bachelor degree in accounting will do no harm to the applicant. However, that is not the issue to which the Tribunal was required to direct its mind.
I am satisfied that in addressing the factors in clause 12 of Direction 69, the Tribunal relevantly took into account the applicant’s business plan, his stated intentions, the nature and content of his prior studies and the relevance of those studies to his planned business activities. In circumstances where the applicant had given clear evidence about the nature of his intended “self-employment” as the operator of a motor mechanic business, it was in my view open to the Tribunal to conclude that he had already acquired the necessary skills and qualifications to pursue that plan and that the current course of study would not assist the applicant to obtain employment or improve his employability.
The applicant has not demonstrated jurisdictional error in relation to this ground on the basis of illogicality, irrationality, legal unreasonableness or otherwise. By Ground 5 the applicant seeks impermissible merits review. The Tribunal’s finding was open to it on the evidence notwithstanding views may differ about the value of an accounting degree to the applicant’s business plans.
DISPOSITION
For the reasons articulated above, I am satisfied that the applicant has demonstrated error in relation to 4 of the 5 grounds of review. In each case I am satisfied that the relevant error was material and therefore jurisdictional. Certainly, when taken together, those errors reveal jurisdictional error on the part of the Tribunal.
By reason of the errors identified, the decision of the Tribunal ought be quashed and a writ of mandamus issued directing the Tribunal to determine the applicant’s application according to law.
I will grant the relief sought by the applicant and the Minister should pay the applicant’s costs.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 25 May 2023
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