Poon v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 291
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Poon v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 291
File number(s): SYG 775 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 28 March 2024 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Administrative Appeals Tribunal – Whether the applicant satisfied the requirements under the genuine temporary entrant criterion – Whether the Tribunal failed to engage with submissions made by the applicant - Whether the Tribunal’s decision was affected by legal unreasonableness – no merit – application dismissed Legislation: Migration Act 1958 (Cth )ss 499
Migration Regulations 1994 (Cth) cl 500.212, 500.311
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FR 539
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration v SZMDS (2010) 240 CLR 610
Minister for Immigration and Multicultural Affairs v Yusuf (2011) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
SZOVB v Minister for Immigration (2011) 125 ALD 38
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 20 March 2024 Date of hearing: 20 March 2024 Place: Parramatta Counsel for the Applicants: Mr Karp Solicitor for the Applicants: Australia United Lawyers Solicitor for the Respondents: Australia Government Solicitor ORDERS
SYG 775 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KA LEE POON
First Applicant
BERYL LEE
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $7000.00 .
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 D HUMPHREYS
INTRODUCTION
The first applicant, Ms Ka Lee Poon is a national of Hong Kong and the primary applicant. The second applicant, Miss Beryl Lee is her daughter. The first applicant has been declared the litigation guardian of the second applicant. The first applicant initially entered Australian on a subclass 417 (Working Holiday) visa in 2011. In 2013, the first applicant was granted a subclass 572 (VET sector) visa expiring in December 2015. She was subsequently granted a further VET visa expiring in April 2018.
The first applicant then applied for a Student (Temporary) (Class TU) visa (“the visa”) on 13 April 2018 to undertake further study in Australia.
On 22 May 2018, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“delegate”) refused the application as the delegate was not satisfied that the applicant met the genuine temporary entry criterion.
On 25 May 2018, the first applicant applied for merits review by the Administrative Appeals Tribunal (“the Tribunal”).
On 19 February 2020, the Tribunal affirmed the decision under review not to grant the applicants their visas.
The applicant now seeks judicial review of the decision in this Court. For the reasons set out below, the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal decision at [1] to [6] affirmed that the issue before it was whether the first applicant satisfied the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) that being, whether the applicant was a genuine temporary entrant.
They noted that the primary applicant had appeared before the Tribunal for a hearing on 14 February 2020 to give evidence and present arguments.
Under the heading Consideration of Claims and Evidence, the Tribunal set out the criteria contained in cl 500.212 for determining genuine applicant stay and entry as a student:
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 answering whether the Tribunal believed if the applicant intended to genuinely stay in Australia temporarily, the Tribunal had regard to Ministerial Direction No 69 (“Direction No 69”) made under s 499 of the Migration Act 1958 (Cth) (“the Act” ).
Relevantly, Direction No 69 requires the Tribunal to have regard to the following factors:
•the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
•the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The applicant provided arguments to the Tribunal at the hearing on 14 February 2020 and indicated to the Tribunal that she knew that the issue for determination was whether she was a genuine temporary entrant. The information provided to the Tribunal can be summarised as follows:
·The applicant had completed a Diploma of Tourism in around 2019 and was, at that time, enrolled in an Advanced Diploma of Hospitaly Management due to be completed on 1 August 2021. Before the applicant’s arrival in Australia, she had completed a Diploma of Secretarial Studies and worked as a secretary for four years.
·The applicant arrived in Australia on 11 June 2011 on a working holiday visa which expired in June 2012.The applicant told the Tribunal she was employed on a farm during that time. The applicant applied for a second working holiday visa which was valid until June 2013. The second year on the working holiday visa, the applicant spent as a “holiday”.
·The applicant returned to Hong Kong in June 2013 when her second working holiday visa expired. The applicant remained in Hong Kong for one month before returning to Australia because she “had too much luggage”. The applicant returned to Australian in July 2013 as the holder of a tourist visa which expired in 2013.
·The Tribunal enquired with the applicant how long she had declared she would stay in Australia for as a tourist, to which the applicant replied “ three months”. The Tribunal confirmed that she had returned to collect her luggage and the applicant said “yes, but I also wanted to look at study”. When asked why she needed a visa for three months if she only returned to Australia to collect luggage the applicant indicated that she had social reasons for staying including meeting friends and travelling during that period. The Tribunal enquired into the applicant’s true intention for returning to Australia which she had indicated was for collecting luggage. She answered that “there were a few reasons, luggage is one of them”.
·After the applicant’s tourist visa expired, she went back to Hong Kong and informed the Tribunal that she enrolled for a student visa in October 2013 and it was granted in November 2013.
·Relevantly, she had been granted a Subclass 500 student visa for two years to study a “Certificate III English”. Her subsequent studies have been extensive.
·The applicant gave birth to her second child on 31 May 2018 and confirmed that the child is not listed as a co-applicant because they are not the subject of the application for review.
·In relation to future employment, the applicant told the Tribunal that the tourism industry in Hong Kong is strong, and she intended on returning to Hong Kong in “the manager position in the travel industry”.
·At [20] the Tribunal enquired as to why the applicant could not have undertaken a Diploma of Hospitality in Hong Kong. The applicant answered that in Hong Kong they teach in Cantonese, and she found it beneficial that in Australia as they teach in English and she could “learn a lot more about English”.
·The applicant indicated that she had no assets in Hong Kong. Further, her only family in Hong Kong was her mother and sister. In Australia her family consisted of her two children.
·In relation to how the applicant financially supported herself given that she was last employed in Australia on a farm job in 2012, she indicated that she had savings in Hong Kong, she was supported by her family and did not spend much money.
·The Tribunal pointed out that the Applicant had only returned to Hong Kong on two occasions for a period of one month. The applicant indicated to the Tribunal she did not intend to apply for permanent residence in Australia.
In addition to this, the applicant provided a document to the Tribunal titled “Statement of Purpose” in support of her application (“ the Statement” ) . The Tribunal at [22] stated that they had given the document appropriate weight.
At [24], guided by the considerations of Direction No 69, the Tribunal considered the applicant’s circumstances in her home country. The Tribunal accepted that the applicant had demonstrated ties that acted as an incentive to return to her home country at the completion of her proposed study. However, the Tribunal found that, given the time she has spent in Australia and her intended period of future stay, there was not a significant incentive for her to return to Hong Kong.
In regard to the applicant’s potential circumstances in Australia, they Tribunal considered that her proposed study would have extended her stay up until August 2021. The Tribunal raised concerns that the Applicant seemed to have been studying for the purposes of staying in Australia. According to the Tribunal, the applicant’s conduct suggested that she had decided to extend her stay in Australia by utilising the student visa programme.
The Tribunal placed no weight on the applicant’s “vague” evidence on the value of the intended course of study to her future.
At [28] the Tribunal engaged with the applicant’s study history and noted that she commenced but did not complete a number of courses including vocational courses in business, English, tourism and a Diploma of Marketing, Advanced Diploma of Marketing and a Diploma of Tourism. The Tribunal noted that the applicant had given birth to two children here in Australia, spent an extensive amount of time in Australia as a student, along with time spent on a holiday visa and had commenced a wide variety of courses and in some cases completed them. The Tribunal found that this was the not conduct of a genuine temporary entrant.
At [29], the Tribunal found that the applicant’s course plan was inconsistent with her work history and did not align with her plans when she initially entered Australia. At that time in 2013, the applicant had intended to study a vocational course in English. After commencing and completing the course in 2014 she completed a variety of other courses.
The Tribunal found that the applicant’s statement provided to the Tribunal addresses the genuine temporary entrant criterion and the Tribunal gave it appropriate weight.
The Tribunal took into account the applicant’s work history and her plans for study. The Tribunal was not satisfied that the proposed study would provide clear and substantial improvements to her proposed career plan and that it showed a “realistic prospect of providing significant value to her future”.
At [35] the Tribunal considered the economic circumstances in her home country, Hong Kong and Australia. The Tribunal found that a disparity between the two countries exists and does not provide the applicant with incentive to return to Hong Kong. Further, the applicant did not demonstrate that she has any substantial ties or personal assets which lends weight to the lack of incentive to return to Hong Kong.
The Tribunal was not satisfied that the applicant demonstrated the value of her proposed course to her future. She had not shown any clear and substantial improvements that would arise from the proposed course of study which would outweigh the “significant time and monetary commitment” the courses required.
The Tribunal at [37] gave weight to the evidence that the applicant had spent six and a half years in Australia since her arrival in July 2013. With all available evidence considered, the Tribunal found that it did not suggest the applicant had strong ties to Hong Kong or had an incentive to return.
At [38] the Tribunal found that the applicant’s claims indicate that she commenced study for the purposes of the visa application in order to stay in Australia and does not possess a genuine interest in the area of study.
The Tribunal did not find there to be any other relevant matters in assessing the applicant’s intention to stay in Australia temporary.
The Tribunal found that the primary applicant did not meet the requirements of cl 500.212(a). As such they found that the secondary applicant did not satisfy the requirements of cl 500.311 which required the primary applicant to have satisfied the primary criteria for the grant of a student visa.
GROUNDS OF JUDICIAL REVIEW
The applicant sought leave to rely on amended grounds of judicial review contained in a Further Amended Application annexed to their written submissions, filed on 12 March 2024. The grounds are as follows: (less particulars)
(1)The Tribunal failed to lawfully consider the applicant’s Statement of Purpose at CB-153-154 by failing to engage with the submissions made therein.
(2)The Tribunal decision was affected by legal unreasonableness.
CONSIDERATION – GROUND ONE
Ground one is a contention that the Tribunal failed to consider certain submissions made in the Statement of Purpose (“ the Statement”) the applicant provided to the Tribunal.
The applicant submitted that the Tribunal failed to address in their decision, the following submissions made in the Statement:
(a) That hospitality and management are related, and that the skills and knowledge relevant to both courses are interchangeable and adaptable.
(b) The Advanced Diploma of Hospitality would improve her knowledge of tourism management and give her a broader scope of employment opportunities in Hong Kong.
(c) Given a choice, an employer in Hong Kong would choose to promote a person who had studied in Australia to one who had studied locally.
(d) Studying in Australia exposed her to and gave her an insight into different cultures and that too improved her career prospects in Hong Kong.
The applicant advanced that it was necessary to question whether the Tribunal had lawfully considered the Statement of Purpose.
To do so it was necessary to examine if, as a matter of substance, not form whether the Tribunal had taken the Statement into account; (see: SZOVB v Minister for Immigration (2011) 125 ALD 38 at [43]).
The Tribunal did not engage with or address the points that the applicant raised in regards to the value that the applicant would gain from her courses since she wishes to work in the tourism industry.
The applicant claimed that the Tribunal had not had regard to the information included in the Statement and instead found that the evidence advanced by the applicant during the hearing about her career prospects was “extremely vague”. The applicant relied upon Minister for Immigration and Multicultural Affairs v Yusuf (2011) 206 CLR 323 at [69] where it was held that an inference may be drawn that a matter raised by the visa applicant has not been considered if there is no reference to it in the statement of reasons.
In relation to Ground one, the respondent submitted that the Tribunal said that it had taken [the Statement] into account and given it appropriate weight. In the absence of contrary evidence, it should be inferred that the Tribunal did as it said it did. Contrary to the applicants’ submission, the Tribunal had regard to the four separate submissions. The Minister’s submissions then identify where each of these submissions were considered by the Tribunal.
The respondent further relied on the following:
·Under the heading ‘The applicant does not properly identify any jurisdictional error’ the respondent rejected the applicant’s assertion of whether the Tribunal had considered the Statement of Purpose. The respondent submitted that the Tribunal recorded that it took the Statement into account and had given it appropriate weight. The applicant did not further articulate how in those circumstances, it can be taken that the Tribunal failed to consider those submissions. As such, the Court should be satisfied that the “Tribunal did as it said it did”.
·Further, the respondent submitted that the applicant did not advance any arguments to support the contention that the Tribunal’s failure to consider the submissions would be material in the sense that it could have “realistically resulted in a different decision”. In this instance, the applicant did not offer an argument as to where any such failure to consider would have constituted jurisdictional error.
·The respondent submitted that the applicant failed to discharge their onus of proof and as such, ground one should be rejected by the Court.
·The respondent then examined the four separate submissions that the applicant made in their Statement of Purpose to the Tribunal and submitted that the Tribunal did not fail to take the Submissions into consideration.
·In relation to submission one, an explanation as to why the applicant switched from a Diploma of Travel and Tourism to an Advanced Diploma in Hospitality Management, the respondent submitted that this is referenced directly by the Tribunal at [31] of their decision. As such the applicant’s claim must be rejected.
·Submission two was an explanation as to why the applicant’s studies in hospitality management was an extension of her tourism studies. This submission was directly relevant to the Tribunal’s assessment under Direction No 69 of the value of the proposed course of study to the applicant’s future. The Tribunal had found that the applicant’s evidence of her future career prospects was “extremely vague” and her chosen Advanced Diploma was only relevant to “very vague future plans”.
·The respondent rejected the applicant’s argument that the Tribunal firstly failed to consider the claimed value of the proposed course but in the same instance did not give it any weight. The respondent submitted that this conclusion is not supported by a fair reading of the Tribunal’s reasons.
·The respondent relied on Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] to submit that the Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all circumstances, as part of its fact-finding function.
CONSIDERATION – GROUND ONE
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
[…] an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
It is plainly not necessary for the Tribunal or Authority to refer to every piece of evidence and every contention made by an applicant in its written reasons. Nor is it necessarily required to provide reasons of the kind that might be expected of a Court of law; (see: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FR 539 at [46]. Further, at [47] the Court said as follows:
The inference the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings a greater generality or because there was a factual premise upon which a contention arrests that has been rejected. Where, however, there was an issue raised by the evidence advanced behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegates decision, a failure to deal with that in the published reasons may raise a strong inference that has been overlooked.
Ground one can be summarised as a complaint that the Tribunal failed to give genuine, proper and realistic consideration to the applicant’s Statement of Purpose at (CB 158-9). In the Court’s view there was in fact very little of substance to consider. The Statement contains a general statement as to the benefits of the study and that it would enable her to work as a tour guide and hotel receptionist. It goes on the state why the applicant wants to study at Strathfield College, where she has studied previously.
There are statements as to the average salary for positions in Hong Kong as a hotel receptionist and tour guide. The basis for these figures is not stated. The Statement concludes with a claim that she has more chance of being promoted as compared to a person with similar qualifications from Hong Kong. The basis for this claim is also not stated.
At [22] the Tribunal stated it considered the Statement and ‘had given it appropriate weight. At [31] the Tribunal again stated it had considered the Statement. Reading the decision as a whole, it is an orthodox consideration of the matters the Tribunal was required to consider under Direction No 69. The Tribunal noted at [27] that it did not place weight on the value of the course to the applicant’s future, including remuneration and career prospects. This statement directly engaged with the applicant’s claims set out in her Statement. The Tribunal noted her evidence was very vague in this respect.
The Court is satisfied the Tribunal gave proper genuine and realistic consideration to those claims. It simply found it was not satisfied the applicant was a genuine temporary entrant. That conclusion was open to the Tribunal on the evidence before it and for the reasons it gave. Ground one has no merit.
CONSIDERATION - GROUND TWO
Ground two is a contention that the decision of the Tribunal was affected by legal unreasonableness. It is a focus on [26] to [28] of the Tribunal’s decision which was a consideration of the applicant’s potential circumstances in Australia and a review of her study history in Australia.
The applicant submitted that because the decision in this matter was not “discretionary”, that the “principles” in Minister for Immigration v SZMDS (2010) 240 CLR 610 (“SZDMS”) at [129]-[133] and Minister for Immigration v Li (2013) 249 CLR 332 ( “ Li”) are directly applicable. The applicant further submitted that a finding or conclusion leading to a decision that lacked an evident and intelligible justification, was arbitrary or capricious would be one that” no rational decision maker could arrive at”.
The applicant submitted that the Tribunal’s reasons behind finding that the applicant’s conduct did not suggest that she was a genuine temporary entrant needed to be “examined”.
In relation to the Tribunal’s finding that the applicant had undertaken a wide variety of courses, Counsel for the applicant submitted that firstly, the applicant’s vocational English course was necessary for the applicant to progress to other sources. Secondly, the courses in marketing, travel and tourism and hospitality are linked as “obtaining a share of the tourism market depends on marketing and that hospitality is an integral part of tourism”. Counsel for the applicant claimed that this point had been raised in the applicants Statement to the Tribunal at (CB153-4). Additionally, the subject matter of the courses she commenced but did not complete were closely linked to the ones she had completed.
The applicant submitted that the Tribunal’s statement that the applicant had commenced “and in some cases completed” a “wide variety of courses” was unjustified on the evidence and gave weight to the contention that the decision was legally unreasonable.
In relation to the Tribunal’s finding that the applicant’s course plan was inconsistent with her work history, qualifications and her plan when she initially entered Australia, the applicant submitted that this was also an unreasonable finding.
The applicant submitted that the Tribunal failed to make a link that the vocational English course had a “clear and obvious purpose” as the applicant had just entered Australia for the first time. The applicant submitted that a person who comes to Australia as a genuine student or “ a person who undertakes a vocational course anywhere” does so to improve their prospects. Counsel claimed that it was quite clear the applicant did not wish to remain a secretary and their considerations ignored the obvious purpose of study.
In relation to the Tribunal’s comments at [36] of their decision, counsel for the Applicant submitted that the applicant had summarised her research of potential positions at (CB 154). Instead, the Tribunal had relied on a comparison of the cost of the hospitality management course which was $9000.00 and the 18 months that the applicant would spend studying and compared it with the potential of her earnings in the tourism/hospitality industry in Hong Kong.
The figures that the applicant summarised in her research, as submitted by Counsel, suggests that the applicant’s expenditures on the hospitality management course would be repaid within four and a half months in one of the positions that formed the applicant’s research. Therefore, the applicant submitted that there was no evident and intelligible justification for the conclusion reached by the Tribunal.
The respondent submitted that, for the applicant to succeed in relation to ground two, they must show that the Tribunal’s reasoning in rejecting a specific claim was without a logical or probative basis or was legally unreasonable; (see: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [40]-[41]). This is a significantly high bar for the applicant to reach.
The principles in SZDMS at [78], [130]-[131] highlight that if reasonable minds differ about the Authority’s reasoning, then that reasoning is not irrational or illogical or legally unreasonable.
If any illogicality is made out, this must be such as to make the Authority’s ultimate decision legally unreasonable; (see: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [33]).
The respondent referenced each particular submitted in the Applicant’s amended application. Particular (a) referred to two findings of the Tribunal in regard to the length of the applicant’s additional stay and the wide variety of courses she had undertaken which are said to be legally unreasonable as they were unjustified.
The respondent submitted that the Tribunal in its decision were not only concerned with the length of the additional study but how long the applicant had already spent as a student. The Tribunal found that the period of seven years that the applicant spent as a student was extensive and unreasonable.
In regard to the Tribunal’s’ finding that the applicant had commenced a “wide variety of courses”, the respondent submitted that it was not only this that led to the adverse finding but that courses were ‘commenced and in some cases completed’. It was open to the Tribunal to describe the applicant as having enrolled in and in some cases completed a “wide variety” of courses even if the applicant contended that these were “clearly and obviously related”.
By particular (b) the applicant referred to [29] of the Tribunal’s decision where it noted that the applicant’s course plan was inconsistent with the applicant’s work history and with her plans when she initially entered Australia. The applicant submitted that the Tribunal should have considered the purpose of study, failing to acknowledge that the Tribunal had already done so. Under Direction No 69, the Tribunal was required to have regard to the fact that the proposed study was inconsistent with the applicant’s work history. The respondent submitted that the Tribunal had correctly noted this information and the applicant’s complaint of legal unreasonableness cannot be sustained.
Particular (c) challenges the Tribunal’s finding that the applicant had not demonstrated clear and substantial improvements arising from her proposed study ‘which would outweigh the significant time and monetary commitment of her Diploma of Hospitality course’.
The respondent submitted that Ground two aims to invite the Court to undertake impermissible merits review and to make an assessment for itself as to whether the claimed potential earnings are worth the time and costs incurred.
The respondent submitted that there was no basis on which the Tribunal had to rely on the claims made by the applicant that, at worst the outlay for the hospitality management course would be made up within four and a half months of employment. That claim of potential earnings relies upon a number of assumptions, firstly that they require an Advanced Diploma of Hospitality Management over and above the courses already completed and qualifications already held, secondly that they would be tax free and thirdly that the earnings would not be spent on anything other than course fees.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it; (see: Li at [28]), or where a decision has been made that lacks an “evident and intelligible justification”; (see: Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker; (see: Li at [30], [113]).
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Further, it is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).
The Tribunal decision must be read as a whole. To pick certain parts and submit they, in isolation, demonstrate legal unreasonableness, will in most cases require the Court to venture into impermissible merits review.
The Tribunal properly directed itself as to the matters it was required to consider under Direction No 69 and then proceeded to consider those matters in the light of the evidence presented by the Tribunal. The concerns raised by the applicant in the Court’s view do not demonstrate legal unreasonableness. The findings at [26] - [29] that the applicant had studied a wide variety of courses since 2013 are no more than a statement of facts. The conclusion that her study history was not consistent with that of a genuine temporary entry student was reasonably open to the Tribunal for the reasons it gave based on the evidence before it. The decision, when read as a whole, does not meet the ‘stringent’ grounds for legal unreasonableness, given the length of time the applicant had been in Australia, the number of courses studied, including some not completed and the vague evidence as to her future plans. Ground two has no merit.
As none of the grounds of judicial review have merit, the application must be dismissed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 28 March 2024
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