Patel and Ors v Minister for Immigration and Anor
[2019] FCCA 2436
•2 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2436 |
| Catchwords: MIGRATION – Direction No. 53 – Student (temporary) (Class TU) subclass 573 visa – whether the Tribunal was obliged to consider all factors specified in Direction No.53 – whether the Tribunal considered all factors – whether the Tribunal applied an incorrect test by considering whether the applicant’s connection to his home country was as a strong incentive rather than a significant incentive to return to his home country. |
| Legislation: Migration Act 1958 (Cth), ss.65, 499 Migration Regulations 1994 (Cth), cl.573.223 |
| Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600 Goyal v Minister for Immigration and Border Protection [2019] FCA 170 |
| First Applicant: | GHANSHYAMBHAI RAMABHAI PATEL |
| Second Applicant: | BHUMIKA GHANSHYAMBHAI PATEL |
| Third Applicant: | JIYA GHANSHYAMBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1091 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 11 December 2018 |
| Date of Last Submission: | 21 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 2 September 2019 |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondents: | Mr A Gardner |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed 25 May 2017 be dismissed.
The court orders that the Applicant pay the costs of the First Respondent fixed at $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1091 of 2017
| GHANSHY AMBHAI RAMABHAI PATEL |
First Applicant
| BHUMIKA GHANSHYAMBHAI PATEL |
Second Applicant
| JIYA GHANSHYAMBHAI PATEL |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 25 May 2017, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (‘the Tribunal’) made on 9 May 2017. The Tribunal affirmed a decision of a delegate (‘Delegate’) of the first respondent (‘the Minister’) refusing to grant a Student (Temporary) (Class TU) visa (‘Student visa’) pursuant to s 65 of the Migration Act 1958 (‘the Act’).
The matter was heard on 11 December 2018 and adjourned pending submissions.
For the reasons which follow, I have concluded that the application should be dismissed.
Background
The applicants are a family unit. The first applicant is a male citizen of India, born 18 November 1985 (‘the applicant’). He arrived in Australia on 26 March 2008. The second applicant is the applicant’s partner. The second applicant is also an Indian citizen and was born 28 June 1988. The third applicant, their child, is similarly an Indian citizen and was born 9 February 2013.
The applicant sought a student visa for his enrolment in a Diploma of Retail Management at ANGAD Australian Institute of Technology. The second and third applicants are applying as dependents of the first applicant.
The applicant had previously been enrolled in eleven other courses while in Australia. These included:
a)a Certificate III in ESL;
b)General English (Elementary to Advanced);
c)Certificate IIII in Automotive Mechanical Technology;
d)Certificate IV in Automotive Technology;
e)Diploma of Automotive Technology;
f)Diploma of Management;
g)Diploma of Business;
h)Bachelor of Business Administration;
i)Advanced Diploma of Management;
j)Advanced Diploma of Marketing; and
k)Advanced Diploma of Business.
The applicant has completed four of these courses (being the Certificate IV of Automotive Technology, Diploma of Automotive Technology, Certificate III in Automotive Mechanical Technology and Advanced Diploma of Management).
The applicant had been granted four student visas spanning the period, substantially, from 23 September 2010 to 12 June 2015.
The Delegate’s decision record also indicates that the applicant had applied for 4 Temporary Business (Class UC subclass 457) visas during this period.
Applicant’s claims
The applicant applied for a Student visa in order to complete the Diploma of Retail Management. He completed a ‘Genuine Temporary Entrant statement’ indicating his interest in the course and the benefit of the course for him.
The applicant stated his reason for wanting to study in Australia was that:
Australian Qualifications are highly recognised in India, and I stand a chance to obtain a well-paying job. There have been numerous multinational manufacturing industries which have been started up in India, especially in the automotive sector. My qualification in Automotive, Business with a Retail studies, can be beneficial in securing a management level position in these industries.[1]
[1] Court book, 37.
The applicant explained the relevance of his proposed study to his previous and current career:
It is my desire to gain higher qualifications in the fields of Retail which could give the skills to accommodate my skill to my existing employer as I am working at Tip Top Butcher Retail Outlet. This may also help me in obtaining a well-paid job in India. A Retail qualification will be beneficial in terms of starting up my own business in retail sector, which is what I intend to do.[2]
[2] Ibid 38.
He stated that further study will be beneficial to his future career:
Retail Industry is a well sought after in India, where there are many multinational companies starting up. I am now completing a Diploma of Retail Management which will give me an opportunity to get a position store manager / merchandise manager / buyer / sales manager / area/regional manager level job in the related industry and these studies will be most beneficial for my future career goals.[3]
[3] Ibid 38.
The applicant reiterated these positions when responding to the Delegate’s invitation to comment and when interviewed by the Tribunal.
Delegate’s decision
On 12 June 2016, the Delegate refused to grant the application and gave reasons for doing so.
The Delegate was not satisfied that the applicant had a genuine intention to reside in Australia temporarily.
The Delegate reached the above conclusion by, amongst other things, placing weight on:
a)the applicant’s proposed course being at a ‘low level’, of a generic nature and of a type which could be studied in India;[4]
b)the fact the applicant was studying Vocational Education and Training (‘VET’) courses for more than 7 years while in Australia and had not completed over half of these courses;
c)the fact the applicant did not utilise his VET education – such as his training in automotive vehicles;
d)the applicant’s reasons for undertaking further study, which the Tribunal said indicates a lack of clear career plan (and appears more likely to be a method to stay in Australia);
e)the fact the applicant has made applications for both Student visas and work visas;
f)the finding that the applicant did not provide strong evidence of his connection to India and his desire to return there; and
g)the fact the applicant applied for his course on 5 May 2015, before applying for a new visa on 8 May 2015 (with the previous Student visa ending on 12 June 2015) and having not completed a degree since 2013.
[4] Ibid 86.
The Delegate, in conclusion, stated:
Having considered all the information available, given your study and immigration history, lack of value of the course to your future and comparatively greater economic and employment opportunities in Australia, I find that you are using the Student visa program to circumvent the intentions of the migration program. I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.[5]
[5] Ibid 87.
Tribunal’s decision
On 9 May 2017 the Tribunal affirmed the Delegate’s decision not to grant the applicant a Student visa.
The Tribunal’s primary finding was that the applicant did not intend to stay in Australia temporarily.
The Tribunal made this finding on the basis that it perceived the applicant’s behaviour as indicating a desire to stay in Australia. The Tribunal noted that the applicant stated that studying a Bachelor degree was a ‘dream’ but noted that the applicant’s ‘knowledge of the course content was wholly inconsistent with his stated intention to study the course’.[6] The Tribunal further found the applicant’s knowledge of the market situation in India and how this degree would benefit him to be lacking – which raised further questions on the validity of the applicant’s claims.
[6] Tribunal’s decision record dated 9 May 2017, [39].
The fact the applicant had, at the time of the Tribunal decision, made 5 separate applications for temporary working visas ‘suggest[s] [to the Tribunal that] his intention is to find a way to maintain residency in Australia’.[7]
[7] Ibid [42].
The Tribunal also noted the applicant’s lack of travel back to India despite his extended family living there. The Tribunal deduced from this that the applicant ‘does not have a strong incentive to return to India or that his personal and family connections overseas are an inducement for him to cease residence in Australia’.[8] The Tribunal further noted that the applicant’s wife and child live with him in Australia.
[8] Ibid [43].
The Tribunal sent to the applicant a copy of Direction No. 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (‘Direction No. 53’). The Tribunal informed the applicant that he should have regard to Direction No. 53 in any submissions made to the Tribunal.
The Tribunal noted that the applicant did not, with respect to Direction No.53:
add or highlight any considerations not already discussed with him during the hearing other than saying that if given the chance to finish the Bachelor’s in Australia; a good reputation degree, it will give him a good impression to find a job.[9]
[9] Ibid [45].
Hearing
The applicant appealed the Tribunal’s decision on 25 May 2017.
The matter was heard on 11 December 2018.
The applicant, appearing in person, at the commencement of the hearing on 11 December 2018 handed up written submissions. These submissions relied heavily on the recent decision of Singh v Minister for Immigration and Border Protection [2018] FCCA 3423 (‘Singh’) and raised separate grounds of review from those the applicant raised in his originating application. The applicant’s submissions handed up at this hearing did not expressly address the grounds he had previously raised in the originating application.
The passage in Singh relied on is found at [24] where Riley J stated:
It seems to me that [Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248], although it concerns a somewhat different statutory scheme, stands for substantially the same propositions as [He v Minister for Immigration & Border Protection (2017) 255 FCR 41]. Therefore, it is necessary to consider which of the factors specified in Direction No 53 the Tribunal in the present case considered expressly, and which it may have considered impliedly, or by findings of greater generality or in some other way.
At [40]-[41] in Singh, her Honour set out what she regarded as shortcomings in the Tribunal’s treatment of considerations raised by Direction No. 53:
[40]. The Tribunal included in paragraph 8 of its reasons for decision a summary of a few of the matters mentioned in Direction No 53. Paragraph 8 is as follows:
As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No 53 and the issues in that direction. They were detailed in the primary decision and they include:
Your circumstances
The value of your course/s to your future
Your Immigration history
Your incentive to stay in Australia or return home
If you are using the student visa programme to maintain ongoing residence in Australia
Any other relevant matters
[41] On any view, that is a very superficial summary of Direction No 53. It did not include any reference to the matters required to be addressed by item 9(c), among others. In circumstances where the Tribunal’s summary of Direction No 53 was so superficial, and where, as discussed below, the Tribunal has not considered a number of the matters it was required to consider, it is not possible to infer from the Tribunal’s mention of Direction No 53 by name and the Tribunal’s claim that it had considered the issues in Direction No 53 that it was actually aware of the detail of the contents of that direction.
To give the parties an opportunity to adequately address the issues raised by this decision, the Court ordered that:
1. The parties have leave to address the effect of the decision of Singh v Minister for Immigration and Border Protection [2018] FCCA 3423, with the First Respondent to file written submissions by 28 February 2019.
2. The Applicant have leave to file any submissions in response by 31 March 2019.
3. The matter be adjourned for delivery of Judgement on a date to be advised after 31 March 2019.
Consistent with the Orders, both parties filed further detailed submissions that dealt with Singh (the applicant / respondent’s ‘supplementary submissions’).
Grounds of review
The applicant’s grounds of review, contained in the originating application, are extracted below:
1. AAT took account of irrelevant considerations
2. MRT erred at law
3. Immigration / AAT failed to take account of relevant consideration
4. AAT applied predetermined guidelines or policy criteria without regard to the merits of the specific situation
5. Ignoring materials, the decision-maker was required to look at and I believe was unjust for my case.
6. Case officer relied on materials and information from previous college that should not have been looked at.
7. AAT member used guideline Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa and heavily relied on policy that resulted in a failure on the part of the decision-maker to exercise their discretion.
8. My situation was not considered on its individual merits and member must simply applied rigid policy guidelines in place of its discretion.
9. Incorrectly interpreting the law that I had breached condition 8202 of Schedule 8 to the Migrations Regulations 1994.
As noted, the applicant’s submissions handed up at the hearing (the ‘primary submissions’) did not address the above grounds. Rather, they advanced two different arguments based on Singh. First, that:
‘The Direction [No 53] requires decision makers to consider all of the factors, even in cases where the applicant may not have made any submissions or arguments on those facts. A failure to do so will lead to jurisdictional error.[10]
[10] Applicant’s primary submissions, penultimate page, penultimate paragraph.
The second argument was:
In addition to the fact that the Tribunal did not address all of the factors mentioned in [Direction No. 53] is the fact that they incorrectly applied an item of law. Item 9(b) calls for decision makers to assess whether an applicant has a significant incentive to return to their home country, however when assessing this requirement, the Tribunal stated that Mr Patel did not have a ‘strong’ incentive to return home. They applied a higher standard than was required by the Direction and in doing so fell into another jurisdictional error.[11]
[11] Ibid, final page, penultimate paragraph.
Applicant’s submissions
A ministerial direction made pursuant to s 499(1) of the Act must be complied with: s 499(2A) of the Act. The relevant direction is Direction No. 53.
The applicant states that ‘the recent case of Singh has been used to demonstrate how decision makers need to address all of the Genuine Temporary Entrant Criteria from Ministerial Direction No.53’.
The applicant asserts that the Tribunal failed to consider all of the mandatory considerations in Direction No. 53. He submitted, pursuant to Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57], that the Tribunal ‘must engage in what has been described as “an active intellectual process”’. From his primary submission, the applicant states:
What this means is that each aspect of [Direction No. 53] needs to be considered by the decision maker.
The applicant claims that the Tribunal did not consider all of the considerations and this means that it was in error. The applicant noted several sections of Direction No. 53 that the Tribunal, purportedly, did not consider:
a)the Tribunal failed to assess how the applicant’s study would assist his employment prospects in India (clause 12(a) of Direction No. 53);
b)the Tribunal failed to consider what the applicant ‘could achieve from undertaking this course and what effect this could have on his future in India’ (despite considering how the applicant’s study applies to his current work) (clause 12(b) of Direction No.53); and
c)the Tribunal failed to consider the remuneration the applicant may expect in their home or third country.
The applicant asserted that:
the Tribunal needs to consider these facts, regardless of whether the Applicant makes a submission or argument on each point … as a result, the decision maker needed to consider the remuneration that [the applicant] could expect to receive following the completion of the course.
The applicant’s supplementary submission filed on 31 March 2019 reiterates the position of the primary submission, namely (and with several more examples), that the Tribunal failed to consider all considerations in Direction No.53.
The applicant further alleges that the Tribunal applied an incorrect test at [43] of the decision record. The applicant notes the phrase ‘a strong incentive’ is used, rather, than the words ‘significant incentive’ that clause 9(b) of Direction No.53 refers to. Relying on Singh at [33] (where a ‘significant incentive’ is said to be ‘somewhat less’ than a strong incentive) the applicant alleges the Tribunal has applied a higher standard and is therefore in error.
Respondent’s submissions
The Minister’s primary submissions (‘primary submissions’) addressed the nine grounds contained in the applicant’s originating application.
Grounds 1, 3, 5 and 6
The Minister asserts at [21] of their primary submissions that the applicant did not identify:
with any particularity what materials the Tribunal allegedly overlooked, or otherwise relied on in error. In the absence of particulars to make these complaints meaningful, they cannot succeed.
In addition to that submission, the Minister asserts that it was entitled to have regard to any ‘relevant matter’ when assessing whether the applicant met the Genuine Temporary Entrant (‘GTE’) criterion of cl 573.223(1)(a) of the Migration Regulations 1994 (Cth). Accordingly, it was appropriate for the Tribunal to consider information provided either by the applicant or obtained by other methods.
Ground 2
The Minister noted this ground was not particularised and therefore could not be commented upon.
Grounds 4, 7 and 8
These grounds relate to impermissible use of policy in making a decision. The Minister disputes this allegation.
The applicant, by ground 7, appears to be challenging the Tribunal’s reliance on Direction No.53. The Minister submits that the Tribunal is required by s.499(2A) of the Act to consider Direction No.53 to determine if the applicant is a GTE.
The Minister states that the Tribunal ‘comprehensively considered the applicant’s claims’ including:
his plans to return to India; details about his course; alternate study options in India; his Subclass 457 visa nominations; his employment history in Australia; and his family circumstances and immigration history.
(citations omitted)
The Minister further claims that the applicant has not particularised his claims that the Tribunal had predetermined the issue. The Minister submits that one cannot draw inferences from an adverse finding to show bias or prejudgement.
Ground 9
The Minister submits that this ground is misconceived and not relevant to these proceedings.
The matter of Singh
The Minister submits, in its supplementary submissions, that this case and Singh can be distinguished and should not be followed by this Court because:
First, as a preliminary matter to note, the decision in Singh is not binding on another judge of the Federal Circuit Court of Australia and should only be treated as persuasive.
Second, the Tribunal considered all mandatory matters listed in the Direction, either expressly, impliedly or by reference to findings of greater generality. […]
Third, the applicant in this case was provided with a copy of the Direction prior to the hearing and was specifically requested to have regard to it in any submissions that he provided. The Tribunal canvassed a range of matters arising from the Direction with the applicant. The applicant did not add or highlight any considerations not discussed with him at the hearing. The Tribunal clearly stated that “There is no additional, material consideration or claims relevant to the matters before the Tribunal and/or arising out of consideration of factors in Direction 53 other than matters fully canvassed at the hearing”. The Court should therefore draw an inference that, to the extent that any mandatory consideration was not considered in the reasons (which is denied for the reasons above), the Tribunal had regard to those considerations but merely considered that they were irrelevant or without an evidentiary basis upon which to weigh the factor or make findings regarding it.
(citations omitted)
The Minister at [8]-[13] notes how the Tribunal canvassed Direction No.53, particularly the considerations within [9] (‘the applicant’s circumstances in their home country’), [11] (‘the applicant’s potential circumstances in Australia’), [12] (‘value of the course to the applicant’s future’) and [14] (which relates to the applicant’s immigration history).
The Minister submits:
Otherwise, paragraphs 1 to 5, 7 to 8, 10, 13 and 15 of the Direction were either general statements, discretionary considerations or not relevant to the circumstances of the applicant.
The Minister’s final submission regards the use of ‘strong’ instead of ‘significant’ by the Tribunal:
Finally, to the extent that the applicant alleges jurisdictional error in the Tribunal’s use of the term “strong” rather than “significant” in finding that the applicant’s travel history indicates he does not have an incentive to return to India, this should be rejected. It is clear from the final sentence of [44], when the Tribunal summarises the position, that it was aware that the relevant consideration was whether there were circumstances that were a “significant incentive” for the applicant to return to India.
(citations omitted).
Consideration
Ground 1, 3, 5 and 6
The applicant has not particularised these grounds and has not stated – either by written submission or during the hearing – what relevant considerations the Tribunal failed to consider or what irrelevant information the Tribunal did consider. Consequently, the grounds must fail.
There is no apparent error in the manner in which the Tribunal considered the information that was before the Tribunal.
Ground 2
No particulars have been provided in support of this ground. There is no error of law apparent. Consequently, the ground must fail.
Ground 4, 7 and 8
There is no evidence that the Tribunal applied ‘predetermined guidelines or policy criteria without regard to the merits of the specific situation’ or ‘rigid policy guidelines in place of its discretion’. Consequently grounds 4 and 8 must fail. Similarly, the applicant’s allegations as to the reliance on policy in ground 7 are not stated and must fail.
The applicant also appears to challenge the Tribunal’s use of Direction No.53. The Minister correctly submits that the Tribunal is required to consider Direction No.53 when assessing whether an applicant is a GTE. To the extent that the applicant is challenging whether the Tribunal properly considered the factors in Direction No.53, this is dealt with below.
There is no evidence that the Tribunal failed to exercise its discretion or limited its discretion by inappropriate reliance upon Direction No.53 or any other policy. Ground 7, therefore, must fail.
Ground 9
I accept the Minister’s submission that the ground does not relate to the issues the Tribunal had to consider and therefore, this ground must also fail.
The matter of Singh
Singh has been referenced by two Federal Court decisions, both of which averted from making a finding on whether Direction No.53 was mandatory.
Per Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [14]:
In Singh v Minister for Immigration [2018] FCCA 3423 at [17] to [36] Judge Riley concluded that where Direction 53 is applicable, each of the criteria must be considered. It is unnecessary for me to form a view about whether the criteria prescribed in Direction 53 are mandatory, as I have concluded that each criteria was considered.
A similar approach was taken in Goyal v Minister for Immigration and Border Protection [2019] FCA 170 at [5]:
The Minister’s submissions also addressed an issue that was not considered by the Circuit Court, namely the significance of Singh v Minister for Immigration [2018] FCCA 3423, as that decision was made after the decision of the primary judge. It is unnecessary for me to express any opinion concerning this issue.
Singh has also been considered in this Court by other Judges. In Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (‘Kaur’), Judge A. Kelly at [39]-[59] analysed the structure of Direction No.53.
He stated at [49]–[51]:
[49] A distinguishing feature of the drafting of Direction 53 is that while Part 1 and Part 2 (par 5) make clear that the factors which are addressed by the Direction are not to be employed as a checklist and are intended to serve as a guide, the text of pars 6, 9, 11, 12, 14, 15 and 16 state that the decision maker must have regard to the factors which they address. On one view the matters addressed by pars 6, 9, 11, 12, 14, 15 and 16 should be read subject to the intention expressed in par 5 that those matters not be employed as a checklist but that they serve as a guide.
[50] In his role as model litigant, the Minister drew attention to a series of decisions which have considered whether the requirements in Direction 53 should be construed as being mandatory provisions that an administrative decision-maker must take into account when assessing a visa application under cl 572.223, or whether they are permissive
[51] The use of guidelines in the exercise of statutory discretionary powers is not uncommon. The trend of reasoning in the authorities respecting Direction 53 and to which my attention was drawn confirms that the use of those guidelines requires that they be addressed insofar as they are relevant to the particular facts of the instant application. By extension, those guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.
(citations omitted)
Judge A. Kelly then went on at [55] to refer to Singh v Minister for Immigration & Border Protection [2019] FCA 428 (Bromberg J) at [24] and Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2053 (Perry J) at [23] in support of the proposition that a Tribunal may have regard to the matters contained in [6]-[16] of Direction No.53 insofar as those specific matters were applicable to the case.
Similarly in Khan v Minister for Immigration & Anor [2019] FCCA 565 (‘Khan’) at [35], Barnes J stated in relation to Direction No.53:
Insofar as the particulars to the grounds of review appear to assert that it was essential that the Tribunal refer expressly to each of the directions in Direction No 53 that is not the case. The Tribunal was not required to specifically mention every factor in Direction No 53 as relevant to or determinative of its conclusion. Rather it was to take into account the import of that direction as a whole in considering the relevant facts and circumstances that bore upon the issues raised by the direction (see Singh v Minister for Immigration & Border Protection [2016] FCA 74 at [28] and Suthar v Minister for Immigration & Border Protection [2016] FCCA 2844 at [19]). As stated in direction 1, the factors listed are “not to be used as a checklist”. It is apparent from the Tribunal’s reasons that it understood the relevance of Direction No 53 and the fact that it was to be considered in assessing whether the Applicant satisfied the criterion in cl.572.223(1)(a) in Schedule 2 of the Regulations. In that context the Tribunal’s obligation was to have regard to relevant factors and to weigh up the Applicant’s circumstances as a whole.
In the present case, the Tribunal has, without specific reference to each of the paragraphs of Direction No. 53, considered and weighed up the relevant matters raised for consideration by Direction No.53. The submissions of the Minister correctly identify those matters considered by the Tribunal. There is no error disclosed by this approach.
I will adopt the analysis in Kaur and Khan. Accordingly, the fact the Tribunal did not expressly refer to parts of Direction No. 53 which were not relevant to the applicant’s claim does not place the Tribunal into error.
A ‘strong’ or ‘significant’ incentive
The applicant impugns the Tribunal’s use of ‘strong incentive’ rather than using ‘significant incentive’ in [43] of the Tribunal’s decision record. The applicant relies on Singh at [33].
Paragraph 9(b) of Direction No.53 requires a decision maker to have regard to the extent of the applicant’s personal ties to their home country and whether these ties serve as a significant incentive to return to their home country.
At [43] of the Tribunal’s decision record, the Tribunal observed:
that the applicant’s travel history indicates he does not have a strong incentive to return to India or that his personal and family connections overseas are an inducement for him to cease residence in Australia.
At [44] of the Tribunal’s decision record, the Tribunal found that:
the extent of the applicant’s personal ties, asset and employment situation in his home country do not serve as a significant incentive for him to return to India and to make his stay in Australia a temporary one.
The Tribunal has addressed these factors required by [9](b) of Direction No.53. The references to a ‘strong incentive’ in [43] does not constitute a jurisdictional error. The Tribunal was then considering the travel history rather than whether the applicant had a significant incentive to return to their home country. In any event, the expressions ‘strong incentive’ and ‘significant incentive’ are reasonably synonymous, and in view of the findings made, do not materially affect the decision. There has been no failure by the Tribunal to make decisions on matters material to the application.
Accordingly, there is no error in the manner that the Tribunal applied Direction No. 53 in relation to whether the Applicant had an incentive to stay in Australia or return to India.
Conclusion
For the reasons above, I have concluded that the application must be dismissed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 2 September 2019
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