Rai v Minister for Immigration - [2020] FCCA 2265

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAI v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2265

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – Tribunal not satisfied that the visa applicant was a genuine temporary entrant for study – whether the Tribunal constructively failed to exercise its review jurisdiction or acted unreasonably considered – other errors alleged – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 357A, 359, 359B, 359C, 360, 363, 363A, 379A, 379C, 379G, 499

Migration Regulations 1994 (Cth)

Cases cited:

ARG15 v Minister for Immigration (2016) 250 FCR 109

CQG15 v Minister for Immigration (2016) 253 FCR 496

DAO v Minister for Immigration (2018) 258 FCR 175

Hasran v Minister for Immigration (2010) 183 FCR 41

Hossain v Minister for Immigration (2018) 264 CLR 123

Kumar v Minister for Immigration [2020] FCAFC 16

Minister for Immigration v Saba Bros Tiling Pty Ltd [2011] FCA 233

Minister for Immigration v Singh(2014) 231 FCR 437

Minister for Immigration v SZFML & Anor (2006) 154 FCR 572

Minister for Immigration v SZMDS(2010) 240 CLR 611

Minister for Immigration v SZVFW [2018] HCA 30

NBBL v Minister for Immigration (2006) 152 FCR 592

Nguyen v Minister for Immigration & Anor [2010] FMCA 726

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Singh v Minister for Home Affairs(2019) 267 FCR 200

Uelese v Minister for Immigration (2015) 256 CLR 203

Vo v Minister for Home Affairs (2019) 269 FCR 566

Applicant:

SHARAN RAI

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2997 of 2019

Judgment of:

Judge Driver

Hearing date:

17 August 2020

Delivered at:

Sydney

Delivered on:

8 September 2020

REPRESENTATION

Counsel for the Applicant:

Ms R Lahoud by telephone

Counsel for the Respondents:

Ms K Hooper by telephone

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application as amended on 3 August 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2997 of 2019

SHARAN RAI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Rai, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 October 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Rai a temporary student visa.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 3 July 2020.
Mr Rai is a citizen of Nepal who arrived in Australia on 7 March 2009 as the holder of a student (subclass 572) visa.[1]
[1] Court Book (CB) 34
On 13 March 2017, Mr Rai lodged an application for a student (subclass 500) visa[2] to study a Diploma of Leadership and Management at Australian Ideal College[3] and provided a copy of the following documents in support of his visa application: a certificate and transcript for a Diploma of Customer Contact dated 30 July 2014, a transcript for a Certificate IV in Business Administration from 6 July 2015 to 10 January 2016 and a copy of his passport and confirmation of health cover.[4]
[2] CB 1-22
[3] CB 10
[4] CB 18-22
On 30 June 2017, the delegate refused to grant Mr Rai a student visa.[5] The delegate was not satisfied that Mr Rai was a genuine applicant for entry and stay as a student required by clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate found that Mr Rai had been residing in Australia for ten years holding temporary visas or associated bridging visas and had only spent 38 days outside Australia during this period. The delegate had regard to Mr Rai’s enrolment history and found that over the past three years he was enrolled to undertake three different courses of short duration and low cost. The delegate found there was no genuine temporary entrant statement included in the visa application and was therefore unable to assess the value of the course to his future. The delegate concluded Mr Rai was using the student visa program as a means of maintaining ongoing residence in Australia and did not have a genuine intention to stay in Australia temporarily.[6]
[5] CB 27-35
[6] CB 34-35

The Tribunal

On 18 July 2017, Mr Rai applied to the Tribunal for review of the delegate’s decision[7] and nominated a registered migration agent as his representative. He provided a copy of the delegate’s decision with his application.[8]
[7] CB 36-37
[8] CB 37
On 11 January 2019, Mr Rai was invited pursuant to s.359(2) of the Migration Act 1958 (Cth) (Migration Act) to provide information in writing about the course of study he was intending to undertake. He was asked to complete a Request for Student Visa Information form. He was notified that it was a requirement for the grant of the visa that he be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. He was notified that, in considering whether Mr Rai was a genuine applicant for entry and stay as a student, the Tribunal would have regard to Ministerial Direction No 69. Mr Rai was required to provide a response to the invitation by 25 January 2019 and he was notified that if he failed to respond by that date and no extension of time was granted, he may lose any entitlement he may otherwise have had to attend a hearing and the Tribunal may proceed to make a decision on the review.[9]
[9] CB 48-56
Mr Rai failed to respond within the prescribed period. On 30 January 2019, Mr Rai’s representative provided the following documents: letters from Australian Ideal College and Confirmations of Enrolment in relation to an enrolment in a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management with varying course commencement dates.[10]
[10] CB 57-61
On 29 March 2019, the Tribunal wrote to Mr Rai’s representative to inform him that his Migration Agent Registration Number (MARN) had lapsed on 12 December 2017. The Tribunal informed Mr Rai’s representative that the Tribunal was required to continue sending all correspondence relating to Mr Rai to them. However, the Tribunal also confirmed that they would send future correspondence to Mr Rai as well.[11]
[11] CB 62-64
On the same day, the Tribunal wrote to Mr Rai to inform him that his representative no longer had a registered MARN. The Tribunal indicated that it was required to continue sending all correspondence to Mr Rai’s representative on the record but they would also send a copy to Mr Rai.[12]
[12] CB 65-66

The Tribunal’s decision

As noted above, on 16 October 2019, the Tribunal affirmed the decision under review.[13]
[13] CB 67-86
The Tribunal set out the relevant background to the matter including Mr Rai’s failure to respond to the s.359(2) invitation within the prescribed period. The Tribunal found that pursuant to s.359C and s.360(3) of the Migration Act, Mr Rai was not entitled to appear before the Tribunal.[14]
[14] CB 72, [8]
The Tribunal expressly considered whether it should adjourn the review under s.363(1)(b) of the Migration Act to allow Mr Rai additional time to provide further evidence but found in the circumstances that he had a fair opportunity to provide relevant information.[15] The Tribunal proceeded to make a decision having regard to the information before it including the information previously provided to the Minister’s Department and the material sent to the Tribunal on 30 January 2019.[16]
[15] CB 72, [10]-[11]
[16] CB 72, [12]
The Tribunal set out the legislation and identified that the issue before it was whether Mr Rai was a genuine applicant for entry and stay as a student and explained the relevance of Ministerial Direction No 69.[17]
[17] CB 73-74, [18]-[21]
The Tribunal found that Mr Rai had first arrived in Australia on 7 March 2009 and based on the delegate’s decision record only spent 38 days outside of Australia since his arrival onshore. The Tribunal found Mr Rai had been residing on Australia for a significant, lengthy period with “very limited time offshore”.[18]
[18] CB 74, [22]
The Tribunal found Mr Rai previously enrolled in an English course, a Certificate IV in Business Administration and a Diploma of Leadership and Management and now proposed to undertake an Advanced Diploma of Leadership and Management.[19]
[19] CB 74, [23]
The Tribunal noted that Mr Rai provided the Minister’s Department with a Certificate for a Diploma of Customer Contact dated 30 July 2014 which appeared to have taken twelve months to complete. He also supplied a document indicating that he obtained five competencies in a Certificate IV in Business Administration dated 23 March 2016 and appeared to have taken nine months to achieve. The Tribunal found no evidence indicating that he actually completed a Certificate IV in Business Administration, a Diploma of Management from November 2015 to November 2016 and a Diploma of Leadership and Management from April 2016 to March 2017. The Tribunal was concerned at Mr Rai’s study history and found that he only completed one course, being the Diploma of Customer Contact in 2014, in a period of over ten years which raised “serious concerns” about Mr Rai’s true intentions in residing onshore.[20]
[20] CB 74, [24]
The Tribunal evaluated the response provided by Mr Rai in his student visa application that he was intending on completing an Advanced Diploma of Leadership and Management. The Tribunal found that if Mr Rai had completed the Advanced Diploma described in his visa application, “he would now be finished and in a position to return to his own country”.[21] Instead, he supplied further correspondence from his provider indicating he was scheduled to commence a Diploma of Leadership and Management on 7 January 2019 and an Advanced Diploma of Leadership and Management on 6 January 2020. This raised “serious concerns” for the Tribunal as to how Mr Rai had been spending the last two and a half years.[22]
[21] CB 74-75, [25]
[22] CB 75, [25]
The Tribunal found that there was “little evidence” suggesting Mr Rai had been studying at all from March 2017 to January 2019 as the courses he supplied enrolments for were identical to those in which he was previously enrolled.[23] The Tribunal found this was not the kind of behaviour consistent with that expected of a genuine applicant for entry and stay as a student in Australia and concluded that in the “ten year period onshore, the applicant has only completed one VET sector course”.[24]
[23] CB 75, [26]
[24] CB 75, [27]-[28]
The Tribunal found the extremely limited academic progress in the ten years Mr Rai has been in Australia was “troubling” in circumstances where his presence onshore was on the basis of a student visa.[25]
[25] CB 76, [30]
The Tribunal found Mr Rai had not provided any details of work, income or his economic circumstances while onshore. The Tribunal found on the basis of the United Nations Human Development Index rankings that Mr Rai’s economic circumstances in Australia relative to Nepal were likely to be a significant incentive for him not to return to his home country.[26]
[26] CB 76, [31]
The Tribunal noted that Mr Rai did not provide details in relation to personal ties in Australia but considered that he had formed personal ties given the length of time he had been living in Australia. The Tribunal found that Mr Rai was likely to have “cultivated and established strong ties” to the Australia community.[27]
[27] CB 76, [32]
The Tribunal noted that Mr Rai had only been offshore for 38 days in a period of in excess of ten years in Australia. Although Mr Rai’s wife, father and brother resided in Nepal, the Tribunal found that Mr Rai’s personal ties were not serving as a significant incentive for him to return.[28]
[28] CB 75, [33]
The Tribunal also found Mr Rai had not provided acceptable reasons for not undertaking the study in his home country,[29] and his failure to complete any study beyond one Diploma course over a period of in excess of ten years raised “serious questions” about Mr Rai’s true intentions in Australia.[30]
[29] CB 76, [34]
[30] CB 77, [35]
The Tribunal had “serious concerns” about the length of time Mr Rai had remained onshore, which it found may not be consistent with the meaning of “temporary” in the circumstances of a student visa.[31] The Tribunal also found that Mr Rai was undertaking short, lower level, inexpensive courses and this indicated that he was using the student visa program to maintain ongoing residence.[32]
[31] CB 77, [35]
[32] CB 77, [38]
The Tribunal found that Mr Rai’s overall lack of academic progress over a period in excess of ten years, his failure to provide information in relation to the genuine temporary entrant criteria, the failure to engage in any study while awaiting the outcome of this review and the period in which the applicant has been onshore, led the Tribunal to consider that Mr Rai was motivated by factors other than study and was using the student visa program as a means of maintaining residence in Australia. The Tribunal was not satisfied on the material and evidence before it that Mr Rai genuinely intended to stay in Australia temporarily.[33]
[33] CB 77, [39]
The Tribunal concluded that based on its analysis of Mr Rai’s immigration history and the other relevant matters, it was not satisfied he was a genuine applicant for entry and stay as a temporary student as is required by clause 500.212 and therefore affirmed the delegate’s decision.[34]
[34] CB 77, [40]-[41]
These proceedings began with a show cause application filed on 18 November 2019.
The matter came before me for a show cause hearing on 20 July 2020. At that time, I was persuaded that an arguable case of jurisdictional error might be drawn from the grounds of review advanced in the original application, if properly particularised. Mr Rai had received some legal assistance but was not represented at the show cause hearing. I required Mr Rai to provide particulars of his grounds of review and, in the event that the order was complied with, the matter was listed for a final hearing on 17 August 2020.
That pre condition was met in the form of an amended application filed on 3 August 2020, having been lodged on 31 July 2020. The grounds in that application as amended are:
1.The second respondent did not provide a 'merits' review at all in line with its purpose and role as an independent statutory body. [Its] decision is largely a paraphrased repetition of the first respondent's decision where the majority of the fact finding had been decided. There was in fact no merit review.
2.Further to ground 1, under the tribunal's heading 'consideration of claims and evidence' there are 20 paragraphs. Over 10 times, the second respondent noted and found that the applicant has been in Australia in excess of 10 years. That is a gross repetition of the same fact and forms half of the decision.
3.The other half of the second respondent's decision is based on the fact that there was little to no evidence before it to make a proper assessment of what the applicant had completed by way of courses in the last 2 and a half years. That is mentioned in seven separate instances. Therefore 17 of the 20 paragraphs deal with these two facts, the balance of the second respondent's consideration is formal or introductory, rather than of any probative substance.
4.Further to grounds 2 and 3 is a conclusion reached unreasonably and illogically and without merit. It can be summed as applicant has been here for 10 years, no evidence of the courses completed in the last 2.5 years and no further GTE evidence, hence delegate decision is affirmed.
5.The second respondent has not allowed itself to be properly informed, of the necessary (and available) information, and has not given the applicant the discretion and/or fair opportunity to provide the relevant information despite knowing that that information is of considerable importance to the decision and in discharging its proper onus in making a sound decision (see Paragraph 11).
6.The second respondent has not reasonably or adequately taken into account the factors in the Ministerial Direction number 69.
7.Further to the above grounds, the second tribunal did not exercise its discretion to adjourn the matter in order to circumvent making an unsound and non-merit based decision, despite grounds above and despite knowledge that discretion is available particularly to avoid this situation. That is to avoid making a decision on little or no evidence, to avoid repeating the delegates decision. The applicant was only 5 days late on a 14-day window to comment on the invitation. Sometimes it does take longer to order transcripts from relevant education providers. In circumstances where he did not request an extension, it would have still been fair to grant the self represented applicant an extension in these circumstances.
8.The second respondent has not discharged its onus to make an independent decision nor has it discharged its duties to provide the applicant with a merit review. In allowing itself to affirm the first respondent's decision without evidence, it has acted in concert with the first respondent (rather than separately) and that is not its function nor a proper exercise of its jurisdictional powers.
9.The overall process has culminated in a denial of procedural fairness to this applicant. It has denied the applicant his statutory right to a merit review.
The only evidence I have before me is the court book lodged on 22 January 2020.
The Minister filed supplementary submissions on 7 August 2020. At the trial on 17 August 2020, both Mr Rai and the Minister were represented by counsel who made oral submissions.

Consideration

Mr Rai’s core challenges to the Tribunal decision, as developed by counsel in her oral submissions, reduce to two propositions. The first is that there was a constructive failure of jurisdiction by the Tribunal which went through the form of conducting a review of the delegate’s decision but which did not amount to a proper performance of the Tribunal’s merits review function. Mr Rai contends that the Tribunal was, in effect, acting as a “rubber stamp” of the delegate’s decision and adopted an extremely narrow focus on the various considerations arising from Ministerial Direction No 69, in particular, Mr Rai’s length of residence in Australia and his academic record. Mr Rai contends that the Tribunal should have more assertively pursued its inquisitorial function and should have made at least some attempt to address more of the considerations arising from Ministerial Direction No 69.
I do not accept those contentions. The issue before the Tribunal was whether Mr Rai was a genuine temporary entrant for study. The Tribunal properly had regard to clause 500.212 of Schedule 2 to the Regulations and also had regard to Ministerial Direction No 69 which relevantly required the Tribunal to have regard to a number of specific factors, including Mr Rai’s circumstances in his home country and in Australia, the value of the proposed course in Mr Rai’s future and his immigration history.
The Tribunal plainly did have regard to the matters contained in Ministerial Direction No 69. For example, the Tribunal noted Mr Rai had been living in Australia for over ten years and concluded that he had a preference to remain here.[35] It found the extremely limited academic progress in the ten years the applicant has been in Australia was “troubling”,[36] and concluded that the applicant’s “economic circumstances in Australia relative to Nepal” was a significant incentive for him not to return to his home country.[37] The Tribunal’s findings in this regard demonstrate that it had regard to Ministerial Direction No 69.
[35] CB 76, [32]
[36] CB 76, [30]
[37] CB 76, [31]

There was no obligation on the Tribunal to “formulaically address” or “laboriously set out” each and every matter in Ministerial Direction No 69.[38] It is apparent that the matters that were considered to be relevant to Mr Rai’s circumstances or sufficiently material to Mr Rai were given weight.[39] On that basis, the allegation that the Tribunal failed to perform its review function cannot be made out and no error can be found in the Tribunal’s consideration of the matters contained in Direction No 69.
[38] Kumar v Minister for Immigration [2020] FCAFC 16 at [106]
[39] ibid at [86]
The second proposition developed by counsel for Mr Rai in her oral submissions was that the Tribunal should have given Mr Rai the opportunity to provide additional material, noting that he had been hampered by his first migration agent, whose registration had lapsed. This could be viewed as a want of procedural fairness or an unreasonable failure to adjourn the review in order to give Mr Rai more opportunity to respond to the Tribunal’s request for information.
To the extent that Mr Rai takes issue with the fact that he did not have an opportunity to attend a hearing pursuant to s.360 of the Migration Act, this complaint cannot succeed as Mr Rai lost his entitlement to a hearing by reason of his failure to respond to the s.359(2) invitation.
In a letter dated 11 January 2019, the Tribunal invited Mr Rai to provide information pursuant to s.359(2) of the Migration Act. The Tribunal’s invitation validly invited Mr Rai to provide information and complied with the applicable legislative requirements because it:
a)contained an invitation to Mr Rai to provide further information as provided for by s.359(2) of the Migration Act;
b)was sent in accordance with ss.379A(5) and 379G by transmitting the invitation to the last email address for Mr Rai’s representative provided by Mr Rai to the Tribunal in connection with the review.[40] Therefore, s.379C(5) operated and Mr Rai was taken to have received the invitation at the end of the day the invitation was transmitted (namely, on 11 January 2019); and
c)complied with s.359B(2) by providing Mr Rai with a period of time that was at least the prescribed period of 14 days, as specified by regulation 4.35D of the Regulations.
[40] CB 71, [6]
As Mr Rai did not provide the information within the prescribed period or request an extension of time, the Tribunal was entitled to proceed under s.359C of the Migration Act to decide the matter. Although the power conferred by s.359C must be exercised reasonably and cannot be exercised capriciously, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power.[41] There was, in my view, nothing legally unreasonable in Tribunal’s exercise of discretion under s.359C.
[41] NBBL v Minister for Immigration (2006) 152 FCR 592 at [20]-[21]; Minister for Immigration v SZVFW [2018] HCA 30 at [89]
Section 360(3) makes clear that an applicant is disentitled from their right to appear at a hearing if, under s.359C(1)(a) an applicant has been both invited in writing under s.359 to give information; and under s.359C(1)(b) the information was not given before the time for giving them had passed.[42] The combined effect of ss.360(3) and 363A was that the Tribunal did not have power to permit Mr Rai to appear at an oral hearing. Accordingly, no error is revealed in the procedure adopted by the Tribunal.
[42] Minister for Immigration v Saba Bros Tiling Pty Ltd [2011] FCA 233 at [20]; Nguyen v Minister for Immigration & Anor [2010] FMCA 726 at [7], [20]-[21]; cf Minister for Immigration v SZFML & Anor (2006) 154 FCR 572 at [58]
Mr Rai did respond to the Tribunal’s request for further information, albeit late, and he was assisted in doing so by a migration agent. There is no reason to suppose that anything more pertinent to the review would have been forthcoming from Mr Rai if he had been provided with more time. Accordingly, there was in my view no practical unfairness in the procedure followed by the Tribunal.
As to the grounds of review in the amended application, I agree with and adopt the Minister’s submissions.
Ground 1 is understood as an allegation that the Tribunal constructively failed to exercise its jurisdiction because it merely repeated or adopted the delegate’s decision and did not conduct a de novo merits review.
This ground cannot be sustained on a reading and comparison of the delegate’s and Tribunal’s reasons for decision. It is clear that the Tribunal did not merely adopt the delegate’s decision. For example, at [6][43] the Tribunal acknowledged that because of the passage of time since the delegate’s decision, it had written to Mr Rai and invited him to give information pursuant to s.359(2) of the Migration Act. Mr Rai did not respond within time, thus he was disentitled to a hearing because of the combined operation of ss.359C(1), 360(2)(c) and 363A of the Migration Act. The Tribunal nevertheless considered Mr Rai’s submissions provided to it on 30 January 2019.[44]
[43] CB 71
[44] at CB 72, [12]
To the extent there is similarity in the delegate’s and Tribunal’s reasons, in terms of the issues that each decision-maker considered, that is readily explicable because both decisions turned on findings that Mr Rai did not meet the same criterion for the grant of the visa, and both decision-makers were required to apply Ministerial Direction No 69.
Ground 2 is said to be further to Ground 1. It alleges that in excess of ten times in the Tribunal’s reasons it referred to the time period Mr Rai has remained in Australia in a repetitive way, forming half of the decision.
This ground does not appear to contain any allegation of jurisdictional error. To the extent it is alleged that the Tribunal took into account an irrelevant consideration, Mr Rai’s period of residence in Australia was relevant to various considerations under Ministerial Direction No 69, including:
a)as a circumstance indicating the student visa was intended primarily for maintaining residence in Australia (clause 8);
b)the applicant’s ties to Australia (clause 11(a));
c)as evidence that the student visa was being used to maintain ongoing residence (clause 11(c)); and
d)Mr Rai’s immigration history and, in particular clause 14(b)(iii), “the amount of time the applicant has spent in Australia and whether the Student visa … may be used primarily for maintaining ongoing residence, including whether the applicant … has been onshore for some time without successfully completing a qualification”.
The weight or emphasis the Tribunal gave to particular Ministerial Direction No 69 factors were factual matters for it.
Ground 3 alleges that the remaining half of the Tribunal’s decision “is based on the fact that there was little to no evidence before it to make a proper assessment of what the applicant had completed by way of courses in the last 2 and a half years. …”
Like Ground 2, this ground does not appear to contain a complaint of jurisdictional error. It is correct that the Tribunal identified the absence of evidence before it, from Mr Rai, addressing relevant factors on which its decision turned.[45] However, the Tribunal was required to be affirmatively satisfied that Mr Rai met the criteria for the grant of the visa.[46] It did not require rebutting evidence to disprove that Mr Rai satisfied the genuine temporary entrant criterion (or any other criteria for the grant of the visa).
[45] for example, at CB 74, [29]
[46] Migration Act, s.65
Ground 4 is said to be further to Grounds 2 and 3, and alleges legal unreasonableness and illogicality in the Tribunal’s decision on the review. Principles concerning irrationality and illogicality in the process of administrative decision-making were stated in Minister for Immigration v SZMDS.[47] The test is a stringentone and was stated by Crennan and Bell JJ as follows, at 649-650 [131]:
… the 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.
Mr Rai must demonstrate extreme illogicality or irrationality in order to be granted the relief sought.[48] Illogicality or irrationality requires more than emphatic disagreement with the reasoning or findings.[49] Mr Rai must show that the Tribunal’s decision to affirm the delegate’s decision refusing the application for a student was one which no rational or logical decision maker could have arrived at on the evidence that was before the Authority.[50]
[48] DAO v Minister for Immigration (2018) 258 FCR 175 at 183-184[30] (Kenny, Kerr and Perry JJ); ARG15 v Minister for Immigration (2016) 250 FCR 109 at 122[47] (Griffiths, Perry and Bromwich JJ); CQG15 v Minister for Immigration (2016) 253 FCR 496 at 517[60] (McKerracher, Griffiths and Rangiah JJ)
[49] SZMDS at 645-646[124]; CQG15 at 518[61]
[50] SZMDS at 647-648[130] per Crennan and Bell JJ
The Full Federal Court comprised of Derrington, Banks-Smith and Colvin JJ in Vo v Minister for Home Affairs[51] summarised applicable principles concerning a complaint of legal unreasonableness. Relevantly, they included that where reasons have been provided, then the reasons are the focal point for assessing whether the decision was unreasonable,[52] and that: [53]
there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised.
[51] (2019) 269 FCR 566 at 576 [43]
[52] citing Minister for Immigration v Singh(2014) 231 FCR 437 at [46]-[47]
[53] citing Hossain v Minister for Immigration (2018) 264 CLR 123 at [25], [30]-[31]
Whether a decision is legally unreasonable is assessed by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker.[54]
[54] Singh v Minister for Home Affairs(2019) 267 FCR 200 at 216[61] per Reeves, O’Callaghan and Thawley JJ, and the authorities there cited
It is not demonstrated that the Tribunal’s decision is illogical, or legally unreasonable. The Tribunal set out Mr Rai’s (limited) evidence and claims, engaged with Ministerial Direction No 69 considerations in so far as they were relevant, and made factual findings properly open to it and for which reasons were given.
In so far as Mr Rai’s complaint is that the Tribunal unreasonably exercised its discretion not to adjourn the review pursuant to s.363(1)(b) of the Migration Act to allow Mr Rai additional time to provide evidence[55] legal unreasonableness is not demonstrated. The Tribunal identified that it had the discretion to adjourn the review. It had not been asked to exercise its discretionary power, but nevertheless considered whether it should do so. The Tribunal identified the factors it had regard to in its exercise of discretion, in particular at [9]-[11].[56] The Tribunal has given cogent and rational reasons for its exercise of discretion, and they provide an intelligible justification for its decision.[57]
[55] see CB 71-72, [7]-[12] of the reasons
[56] CB 72
[57] Minister for Immigration v Singh at 446-447[47]
Ground 5 alleges that the Tribunal: [58]
has not allowed itself to be properly informed, of the necessary (and available) information, and has not given the applicant the discretion and/ or fair opportunity to provide the relevant information despite knowing that that information is of considerable importance to the decision and in discharging its proper onus in making a sound decision (see Paragraph 11).
[58] reproduced as written
The Minister repeats his submissions above as to legal unreasonableness. I agree. Further, the Tribunal invited Mr Rai pursuant to s.359(2) to provide it with relevant information. It had no power to invite Mr Rai to a hearing.[59]
[59] Migration Act, ss.359C(1), 360(2)(c) and 363A; Hasran v Minister for Immigration (2010) 183 FCR 413 at 417-418 [25]-[32]
Ground 6 alleges that the Tribunal “has not reasonably or adequately taken into account the factors in the Ministerial Direction number 69”. No particulars are given, although the issue was developed by counsel orally, as discussed above.
In considering whether Mr Rai satisfied clause 500.212(a) of Schedule 2 of the Regulations, the Tribunal was required to have regard to Ministerial Direction No 69, made under s.499 of the Migration Act.[60]
[60] Migration Act, s.499(2A); Uelese v Minister for Immigration (2015) 256 CLR 203 at 211[19] per French CJ, Kiefel, Bell and Keane JJ
In Kumar, the Full Federal Court (Derrington, Thawley and Logan JJ) considered the nature and extent of the Tribunal’s obligation to consider all factors in what was then Ministerial Direction No 53. Their Honours rejected the appellant’s appeal, finding no failure by the Tribunal to comply with the Direction. Justices Derrington and Thawley (with whom Logan J agreed) delivered joint reasons for judgment. At [29], their Honours stated:
If there is a failure to comply with Direction 53 in reaching an adverse state of satisfaction under cl 572.223(1)(a) which is sufficiently material to the formation of that state of satisfaction, and consequently upon the state of satisfaction in s 65(1) of the Act then, depending on the nature of the non-compliance, jurisdictional error may be established. An example of such jurisdictional error is as follows. If Direction 53 required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated if the applicant established that he or she was thereby deprived of the possibility of the repository of power forming a favourable state of satisfaction: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]–[31] (Keifel CJ, Gageler and Keane JJ) and [72] (Edelman J); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]–[48] (Bell, Gageler and Keane JJ) and [84]–[95] (Nettle and Gordon JJ). Although the decision-maker was, in fact, not satisfied that the visa applicant had met the relevant criteria, that actual state of mind was reached through a “material” non-compliance with statutory requirements prescribed for that decisional process. Accordingly, the state of non-satisfaction was not of the kind upon which the legislature conditioned the exercise of power under s 65(1)(b).
At [83], their Honours held that the Direction, “where it provides that the decision-maker ‘must have regard to’ the factors mentioned, the phrase – read in context – means that the decision-maker should turn his or her attention to each factor during the decision-making process and consider whether and how it should be brought to bear in reaching the decision”. At [96]-[97], their Honours continued:
Direction 53 requires that, in reaching the state of satisfaction in cl 572.223(1)(a), the decision maker “have regard to” the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial.
That is not to deny that a failure to make a finding might constitute or evidence jurisdictional error in particular circumstances. The visa applicant would need to establish that: (a) it was necessary to make the finding in order to have exercised the jurisdiction or exercised it in the manner contemplated by the statutory scheme; and (b) the failure to make the finding was material in the sense of depriving the applicant of the possibility of a successful outcome: SZMTA.
Mr Rai has established neither of the two matters identified above. It is plain from the Tribunal’s reasons that it has not failed to consider any factor in Ministerial Direction No 69 of relevance to its decision and in a manner demonstrating jurisdictional error.
Ground 7 alleges that, further to the preceding grounds, the Tribunal “did not exercise its discretion to adjourn the matter in order to circumvent making an unsound and non-merit based decision...” This ground fails for the same reasons as Ground 4.
Ground 8 alleges that the Tribunal failed to make an “independent decision”. Essentially, it alleges that the Tribunal failed to discharge its review function independently of the delegate, and made a decision without evidence. This ground fails for the same reasons as Ground 1. In so far as this is a complaint of apprehended bias[61] it cannot be sustained.
[61] cf Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[34]
Ground 9 alleges that the Tribunal denied Mr Rai procedural fairness. The Tribunal complied with the requirements in Division 5 of Part 5 of the Migration Act, which constitute an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which they deal.[62]
[62] Migration Act, s.357A

Conclusion

I conclude that Mr Rai has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 8 September 2020

[47] (2010) 240 CLR 611