Raj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1019
•11 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1019
File number: MLG 3289 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 11 October 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal - Student (Temporary)(subclass 500)(Class TU)– genuine temporary entrant criteria cl 500.212 – Tribunal hearing record – whether applicants were denied natural justice and procedural fairness – whether second respondent committed jurisdictional error – allegations of apprehended bias – whether applicants were put on notice – application and validity of Direction 69 to the Tribunal – whether applicants were given adequate reasons for the rejection of their evidence – application dismissed. Legislation: MigrationAct 1958 (Cth) ss 349, 357A, 359A, 359A(4)(b), 359A(4)(ba), 359AA(1)(a), 360, 499, 499(1)(a).
Migration Regulations 1994 (Cth) cl 500.212.
Cases cited: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
Bosanac v Commissioner of Taxation [2022] HCA 34
Charisteas v Charisteas [2021] HCA 29
Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gould v Companies Auditors and Liquidators Disciplinary Board [2009] FCA 475
Kaur v Minister for Home Affairs [2019] FCA 2026
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 751
Minister for Immigration and Citizenship v Li [2013] HCA 18
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425
Read v. Nerey Nomines - Read v Nerey Nominees Pty Ltd [1979] VicRp 6; [1979] VR 47
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
s 499
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 118 Date of hearing: 1 October 2024 Place: Parramatta Counsel for the Applicants: Mr Perkins Solicitor for the Applicants: Mr Katugampala (Fairfields Lawyers) Counsel for the First Respondent: Dr Gang Solicitor for the First Respondent: Mr Mintz (Clayton Utz) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3289 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANTHONY FABIAN FERDINAND RAJ
First Applicant
SONIA SUBHAS
Second Applicant
AKHESH SINGH NANRA (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
11 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Amended Application filed on 30 August 2024 is dismissed.
2.The First Applicant is to pay the First Respondent’s costs fixed in the sum of $9071.30.
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
This is an application for judicial review of an Administrative Appeals Tribunal (“the Tribunal”) decision dated 26 August 2019 refusing the applicants’ application for a Student (Temporary) (subclass 500)(Class TU) visa (“the visa”).
BACKGROUND
The first applicant in this matter is the husband to the second applicant, and father of the third, fourth and fifth applicants.
The first applicant (the primary applicant) applied for the visa on 27 January 2018.
On 7 March 2018, a delegate of the first respondent (“the delegate”) refused to grant the primary applicant’s visa on the basis that the primary applicant did not satisfy the requirements of cl 500.212 in Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). As the second to fifth applicant’s visa applications depended upon the primary applicant being granted a visa, their applications were also refused.
On 26 August 2019, the Tribunal affirmed the delegate’s decision not to grant the primary applicant a visa.
The applicants now seek judicial review of this decision with the Court. For the reasons set out below the application is dismissed.
THE ADMINSTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal decision spans a total of 12 pages and 31 paragraphs with annexures of the relevant legislation.
From [1] to [6] the Tribunal instructed itself as to the background of the matter. The Tribunal had regard to the legislative criteria for a student visa as set out in Part 500 of Schedule 2 to the Regulations.
The issue on review was whether the applicant genuinely intended to stay in Australia temporarily. In considering this issue, the Tribunal had regard to Ministerial Direction No.69, ‘Assessing the genuine temporary entrant criterion (“GTE”) for Student visa and Student Guardian visa applications’ (“Direction No.69”), made under s 499 of the Act.
The Tribunal had available to them, the following information regarding the applicant’s history leading up to the Tribunal review:
·The applicant first arrived in Australia on 20 January 2002 on a UD976 visa for a period of one month before departing Australia (CB 204;[12]).
·The applicant returned to Australia on a TU-572 student visa where he remained intermittently until 16 December 2003.The applicant was granted another TU-572 visa and came to Australia on 21 January 2015 and has not departed since his arrival in 2015 (CB 204;[12]).
·The applicant then applied for a further student visa (subclass 500) in 2018, which was subsequently refused.
At [15] – [16], the Tribunal reproduced the information in the applicant’s statement of 20 June 2018 contained in the delegate’s file and Request for Student Information material found in the Tribunal file:
[15] In the applicant’s statement of 20 June 2018 he stated that he “would like to enhance my knowledge in the building and construction industry, by taking up a trade skill, in particular, bricklaying/block working. During the course of my diploma, I gained interest in bricklaying and believes that it will give me invaluable experience and provide me with more employment opportunities in the future.”
[16] According to the applicant’s Request for Student Information material the applicant has had the following enrolments here since 2015:
a) ELICOS study finished in June 2015
b) Diploma of Building and Construction completed in December 2017
c) Certificate III in Bricklaying/Block laying finished in December 2018
d) Diploma in Project Management which began in July 2019 and is due to complete in February 2020
e) Diploma of Business due to begin in March 2020 and complete in August 2020
The Tribunal considered the circumstances in the applicant’s home country at [17] – [18]. The applicant stated the following in regard to this consideration:
·he has a mother, stepfather, younger sister and grandmother back home, but he would be able to maintain his family relationships from Australia.
·he owns some property back home, which, upon further discussion with the Tribunal member, it was found to be mostly in a family name or his mother’s name.
The Tribunal ultimately found that the applicant did not demonstrate significant ties to his home country that would incentivise him to return there.
The Tribunal made no findings on the following factors as indicated by Direction No.69: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, and the applicant’s circumstances in the home country relative to others in that country.
The Tribunal made findings with regard to the applicant’s ‘Circumstances and study in Australia and the value of the proposed course to the applicant’s future’, making the following findings:
(a)The applicant has a settled family lifestyle in Australia with his wife and kids. The applicant also has a relationship with his cousin in Perth who he sees from time to time. This evidence along with his involvement in local church activities demonstrated the applicant’s ties with Australia would provide a strong incentive to remain in the country (CB 205; [19]).
(b)The applicant is currently employed in the construction industry and car-detailing he earns $500.00 AUD a week. The applicant is able to earn a reasonable sum to maintain himself and his family whilst being engaged in low level education enrolments. These circumstances are a strong incentive for the applicant to remain in Australia (CB 205; [20]).
(c)The applicant, at the time of the Tribunal decision, was enrolled in a Project Management course. The applicant explained that he wanted to return to Malaysia and open a bricklaying business and may not proceed with his future business diploma enrolment. The Tribunal did not find this evidence credible (CB 206; [21]).
(d)The Tribunal considered that the applicant did not provide “reasonable reasons” for not undertaking his enrolment of study in his own country or “plausible evidence” for why he had to remain in Australia for his future diploma course in business. Although the applicant stated at the hearing that he may not proceed with that enrolment in March 2020, this was attributed no weight. The Tribunal considered that the applicant stated this as a means to persuade the Tribunal that he is not attempting to circumvent the migration program through the student visa pathway. The Tribunal found that the applicant may in fact enrol in the business course to maintain residence in Australia if he is granted the student visa (CB 206; [24-25]).
(e)The applicant has not returned to his home country since 2015. The Tribunal concluded that the applicant’s ties to the home country do not provide a strong incentive to return home (CB 206; [23]).
(f)The Tribunal considered that the applicant had studied a “series of disparate and unrelated courses”; ([25]). There was no plausible evidence demonstrating that the courses the applicant wished to undertake were consistent with his own level of education. Further, it was not clear if the current or prospective enrolment courses would assist him to obtain employment or improve employment prospects in his home country. The enrolments were found to not be relevant to his past or proposed future employment in his home country or a third country.
The applicant did not meet the criteria for the grant of a Subclass 500 (Student) visa. The secondary applicants to the visa application were not classed as members of the family unit of a person who satisfied the primary criteria.
The Tribunal affirmed the delegate’s decision under review.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained in a Further Amended Application filed with leave of the Court on 30 August 2024. This Further Amended Applications was in response to an invitation from the Court to the applicant to consider if the initially proposed grounds could be clarified and made more concise. The grounds now relied upon are as follows:
1.The second respondent denied the applicants natural justice and committed jurisdictional error by failing adequately to ensure the timely identification of the issues arising in relation to the decision under review; or alternatively by failing to confine the hearing to such issues as it ensured were specified in the invitation to attend.
2.The Second Respondent committed jurisdictional error by creating or permitting or engendering an appearance that the member –
Particulars
a) had predetermined some or all of the issues;
b) was dependent or unduly reliant upon, and/or was unduly concerned to preserve comity between himself and the decision of the delegate;
c) contrary to formulating his own personal and independent decision according to law he substantially adopted as a mould the decision he was required to review.
d) maintained excessive, unnecessary and irrelevant deference to the decision which he was required to review independently;
e) did not observe, maintain, and adhere to the precept of independence from the subordinate decision maker;
f) failed to conduct the hearing of the application as a hearing de novo and to ensure fair participation of the applicants would occur
g) examined the applicant unfairly by not putting to the applicant during the examination acts constituting or consistent with possible fraud concealment or untruth on the part of the applicant
h) acted, without appropriate question, examination, or analysis, upon hypothetical but unevidenced concerns of the delegate;
i) failed to ensure that if a rational evidentiary basis of a concern of the delegate existed, it was identified as such in a timely manner, and that the applicant be provided an opportunity to answer.
j) failed to consider, or to specify or inform the applicant of, or discuss, whether and if so how [if at all] the Tribunal may be bound to apply or bring into effect the Ministerial direction, so as to permit the applicant to present arguments concerning it and its effect.
k) failed to take any or any proper account of relevant facts and circumstances not known to the delegate.
l) the absence of any properly reasoned elaboration by the member concerning the applicants stated plan for leaving Australia, the applicant's evidence, and the application generally, created and left undispelled the appearance that the member's discharge of functions as a reviewer was no more than a rubber stamping of the delegates decision.
3.The second respondent committed jurisdictional error by failing to identify, during the hearing and pending his decision, factors relevant [including his view, ruling, or direction to himself of the force and effect of the Ministerial direction] which were a potential basis of a refusal of the application, or alternatively factors relevant as the possible basis of affirmative rejection of the evidence of the applicant, so as to ensure that the applicant not be deprived of a meaningful or any opportunity to be heard; and the failure to do so was unfair and deprived the applicant of natural justice.
4.The second respondent committed jurisdictional error by failing adequately to consider, to determine, and to record and explain in his reasons for decision or otherwise, the extent to which - if at all –
a) he was subject to section 499(2A) of the Migration Act;
b) Ministerial Direction 69 was applicable to the conduct by him of the hearing of the Application;
c) his decision constituted or involved application of Ministerial direction 69;
5. The second respondent committed an error going to jurisdiction in holding, if he did so hold, or in proceeding [as he did] upon the basis that he was required by s.499 of the Migration Act to comply in full or in part with Ministerial Direction 69;
6. The second respondent committed jurisdictional error with respect to the relationship between the respective provisions and subsections of s.499 of the Migration Act , the actual scope of Ministerial Direction 69, and his own status and function as a member of the Administrative Appeals Tribunal;
7. The second respondent committed a multiplicity of errors going to jurisdiction by complying, or apparently complying, wholly or in part, with Ministerial Direction 69 or alternatively by complying with parts of Ministerial Direction 69 which -
a) the member was not required by virtue of s.499[2] to comply;
b) neither contained nor embodied any mandated direction and therefore fell outside the reach of s.499(2A);
c) contained directions which upon the proper application of s.499(2) the Minister was not empowered to give at all, or to include.
8. The second respondent committed an error of law and an error going to jurisdiction by basing its decision wholly or at all on Ministerial Direction 69.
Particulars
a) the direction was contrary to _________ law
b) the direction was in whole or in part vague, uncertain, unsatisfactory, and incapable of application as a mandate or at all;
c) the direction undermines and positively detracts from the appearance of integrity, impartiality, and independence of the Administrative Appeals Tribunal
d) the direction creates an appearance that decisionmakers in the category of the member whose duties require them to act judicially are or can be made subject to direct or indirect dictation by the executive;
e) the direction requires the abandonment by a decision maker required to act judicially of well known and well recognized legal principles and reasoning;
f) the direction engages any decision makers bound by it in a process the inherent tendency of which undermines public confidence in requisite quasi-judicial processes of the Administrative Appeals Tribunal.
g) the use made by the member, if any, of the direction, or of any part of it, or of any of the factors referred to within it, is inchoate
h) the applicants are deprived of the opportunity to detect error in the approach adopted by the member [whether in their favour or to their advantage, or against them] by reason of the failure of the Reasons for Decision to specify how each of [or any] of the factors mentioned in the direction were decided
9. The second respondent committed an error going to jurisdiction by failing, in the absence of any apparent basis for doing so, to treat the applicant’s evidence and the material before the hearing as highly probative of the applicant having had at all material times a careful consideration of relevant factors as well as the existence of rational, reasonable and unexceptionable planning for returning to Malaysia
The Court notes that the amended grounds, as set out above, appear to intermingle various species of jurisdictional error within the numerous grounds such that, even as amended, they lack the degree of clarity the Court would expect from a represented applicant.
EVIDENCE BEFORE THE COURT
The following evidence was tendered to the Court:
(a)The Court book;
(b)A typed transcript of the Tribunal hearing;
(c)Two audio recordings of the Tribunal hearing, which the Court has listened to.
THE APPLICANT’S SUBMISSIONS
The applicant’s amended written submissions, filed on 3 September 2024, address the amended grounds of review filed on 30 August 2024. However, somewhat surprisingly, Counsel for the applicant, without leave from the Court, sought to rely upon a further nine-page written document titled ‘Notes re Ministerial Direction No 69 and s.499 of the Migration Act, Context: rhetoric, mandate, propaganda.’ This document had not been provided to the Court or the Minister’s legal representative prior to the hearing, in time for it to be read and digested. Upon copies being provided, the Court adjourned to enable the document to be read. On resumption of the hearing, Counsel for the Minister indicted she did not require an adjournment in order to address the content of this new document.
Had such an adjournment been sought, the Court would have granted it and would have considered making costs orders against the applicant. Orders were made for the filing and serving of submissions well in advance of the hearing. The Court does not expect and should not be provided with, what appeared to be supplemental written submissions, on the morning of the hearing. It was discourteous to the Court and the Minister’s legal representatives.
Under the heading “Proof of intent” at the beginning of the applicant’s amended written submissions, reference is made to the High Court’s observations regarding proof of intention in Bosanac v Commissioner of Taxation [2022] HCA 34 (“Bosanac”). The applicant contends that, of central relevance in the applicant’s application, is the topic of proof regarding his intentions for his “stay in Australia”.
The applicant submits that the factual scenarios in Bosanac are different, however the principles elicited, which the applicant coins “the Bosanac principles”, are relevant for the judicial review application before the Court.
The applicant’s submissions in regard to the proof of intent take issue with and assert that the Minister should not be able to impose a mandate that the Tribunal or a Member of the Tribunal should follow a course of fact finding, which would allow them to make an inference on the intention of the applicant. In effect, the applicant challenges the validity of Direction No 69.
Ground one is a contention that the Tribunal denied the applicant natural justice by failing to identify the issues arising in relation to the review or alternatively, failing to confine the Tribunal hearing to issues identified in the notification to attend.
Section 360 of the MigrationAct 1958 (Cth) (‘the Act’) reads as follows:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The applicant asserts that the “proper operation and effect” of s 360 requires the Tribunal’s invitation to attend to specify the “identification of the issues arising” and “matters directly relating to the believability of the applicant”. In this way, the Tribunal notification should have included a “plain ambiguous statement” that the issue on foot was the credibility of the applicant.
The s 360 invitation to attend, should have particularised matters that were necessary for the applicant to be put on notice of, any existing case or the extent to which the applicant must deal with a case.
As such the Tribunal notification must disclose “material issues “that are (a) relevant or possible relevant; (b) raise or possibly raise an issue that is not apparent to the applicant and (c) hold a real prospect of providing a lead on evidence which goes to (a) and (b)”( App subs [1.4]).
By ground one, the applicant ultimately submits that the Tribunal “pursued” the issue of the applicant’s believability in a manner akin to cross-examination. Without the protection of an invitation that complied with s 360 of the Act, the applicant alleges that the Tribunal denied the applicant their due process.
Ground two is a contention that the Tribunal committed jurisdictional error by not considering all the matters and evidence “afresh” or with “appropriate independence”. This ground is assisted by 12 particulars that, inter alia, allege that the Tribunal Member had predetermined either some or all of the issues in contention and as a result failed to conduct the review independently. Ground two, read as a whole with the particulars argues firstly, that the Tribunal Member’s individual decision making was affected by their reading of the delegate’s decision, secondly, the Member’s decision making was so affected by the delegate decision that they failed to conduct the applicant’s Tribunal hearing fairly and independently, and thirdly, as a result of this, the Tribunal was biased.
The applicant refers to a recording of the Tribunal and contends that the Member informing the first applicant what the dispositive issue was, being that the delegate did not believe the applicant was a genuine temporary entrant, would have been confronting to the applicant. This is in circumstances, where in the context of the hearing, the power relationship and the way in which the information was communicated would contribute to the applicant being confronted.
The applicant contends that by referring to the delegate’s findings as to the “believability” of the applicant, in this manner, at the beginning of the hearing, the Tribunal Member did not leave any space for the applicant to clarify or provide more evidence to respond to the claim. The Tribunal Member presented a preformed view of the applicant’s case, to which the applicant concludes led them to an understanding they would have to “undertake major credibility repair”. Further, the delegate did not have any basis for the disbelief other than a non-evidence-based concern that they acted upon without any oral evidence.
The applicant addresses the manner of questioning in the Tribunal hearing which they submit included a leading question being asked by the Member, followed by an agreement by the applicant. This evidences that there was no basis for the Tribunal to doubt or reject the applicant’s contention, especially in circumstances where they did not suggest that the applicant’s evidence contained inconsistencies. Further, the applicant alleges that the Tribunal Member’s pattern of questioning demonstrates the existence of a checklist in their mind.
The Tribunal Member’s reference to the delegate’s decision can be taken to be a way of introducing an item from the ‘Ministerial checklist’. The applicant contends that the manner in which the Member referenced the delegate during the hearing suggests that the Tribunal Member was not making an independent judgment and instead based it on the points raised by the delegate.
The Tribunal failed to form an independent judgement regarding the real question on review and identify the matter afresh taking into consideration the Tribunal Member’s capacity to do this.
The applicant complains that there is no basis for the delegate’s adverse decision being made as against the applicant, in circumstances where the logic of the delegate in reaching the conclusion is flawed. As such, the Tribunal failed to have regard to the errors present in the delegate’s decision.
The applicant took grievance with the Tribunal Member’s regard of the views of the delegate and submitted that the Members treatment of the delegate’s views was misplaced. In fact, the applicant argues, the delegate’s concern, as to the believability of the applicant had not been factually made out and was eventually not pressed by the Tribunal.
The Tribunal accommodated and promoted the views of the delegate to an extent that it could not have appeared, to a reasonable bystander, to suggest that the Member “brought an open mind to its task”. The applicant asserts that the appearance is that the Members mind was closed to evidence and what appears in their decision relates to concerns of the delegate that were not based on evidence.
The Tribunal’s findings, it is submitted, are gratuitous, in particular at paragraphs 10, 17, 18, 19, 20, 21, 22, 23, 24, 25 of the decision record and compare to the circumstances in Gould v Companies Auditors and Liquidators Disciplinary Board [2009] FCA 475 where Lindgreen J made comments on gratuitous findings by the Tribunal.
The Tribunal Member, despite stating his obligation to hear the applicant’s case de novo, did not do this and instead used the delegate’s findings and concerns as a bar for proving the case against granting the applicants a visa.
The applicant makes the following submissions under a sub-heading “Comments on specific paragraphs of the decision record” that spans for almost two pages. Inter alia, the applicant raised that the Tribunal’s findings at [17], [20], [21], [22] demonstrates its bias, the Tribunal did not engage with evidence at [23] and [24] and complains about the finding at [25] being ‘preposterous’.
The applicant argues grounds three through to ground eight together in their submissions. These grounds contend that the Tribunal Member erred by taking the Ministerial Direction into account and basing their decision wholly or in part on the Ministerial Direction. It was submitted that the decision maker must make their findings by balancing all the relevant factors rather than proceeding through a checklist, which the Tribunal Member purported to do at the hearing.
The applicant submits in grounds four to eight that the Tribunal is not bound by Direction 69 and therefore fell into error of law by applying it. The Tribunal Member must have properly considered the need for Direction 69 and if they proceeded to comply with it, should have turned their attention to what manner they would be obliged to comply with it.
Ground five is an allegation that, by application of s 499, Direction 69 did not apply to the Tribunal. Further, that nothing in Direction 69, neither the form nor substance of the material is mandated by law. In a similar vein, at ground six and seven the applicant allege that the Tribunal should not have had regard to Direction 69 and in fact, assumed that it was mandated for Members of the Tribunal and not delegates of the Minister. The applicant complains that the Tribunal failed to articulate and bring to the applicant’s attention which factors and considerations outlined in Direction 69 were decisive or weighed determinatively in favour of or against the applicant.
The applicant argues that Direction 69 was improperly applied as there is doubt as to whether or not the Direction can apply to Members of the Tribunal.
Ground six alleges that the Tribunal Member assumed and did not address or decide, that he was one of the category of persons which the Minister could give directions. The applicant does not take this ground further in the written submissions.
By ground seven, the applicant complains that the Tribunal’s references to Direction 69 show “unconsidered total disobedience” to it, in the sense that they did not address its meaning or application and how far reaching the mandate provided by the direction is.
Notwithstanding the previous submissions, the applicant concedes Ministerial Directions are required to be “applied” and the Tribunals compliance with it should be overt or direct. The Direction would require striking balances in evaluating each matter and this was not articulated by the Tribunal. Therefore, at ground eight the applicant complains that they were not informed of the considerations that would be favoured by the Member when taking Direction 69 into account.
The applicant makes submissions to address the content and effect of Direction 69 to ascertain its application as a mandate to a legally qualified Tribunal Member.
The applicant also makes submissions addressing: ‘Distinctions between the judiciary and the executive, mixed function decision makers, quasi-judicial Tribunals and hybridised courts.
At ground nine, the applicant argues that the Tribunal in these circumstances should have articulated their treatment of evidence. If the Tribunal was going to reject the applicant’s evidence, they should have explained and provided relevant reasons; (Read v. Nerey Nominees [1979] VR 47). If this ground is made out, the applicant argues that it would allow the Court to quash the Tribunal’s decision and remit it to the Tribunal.
THE FIRST RESPONDENT’S SUBMISSIONS
In reference to the applicant’s contentions as to proof of intent, the first respondent submits that the applicant’s intention was only part of the fact in issue and as the applicant had already given evidence about his intention, there were no inferences of intention necessary. Further, the principles of Bosanac did not apply to the current scenario.
In relation to ground one, it is submitted that neither the text or interpretation of s 360 of the Act requires the notification to address the issues on review or other matters as the applicant complains about. The notification as set out in s 360 is meant for purely logistical and procedural reasons. The applicants would also have been on notice of the singular reason that they were denied a visa by the delegate, and this would have been the issue on review by the Tribunal. The applicants were notified by the Tribunal Member of the fact in issue at the beginning of their hearing.
The Minister relies on Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 751 (Kaur [2024]) at [47] to submit that “there is no viable basis on which to suggest that the review proceedings before the Tribunal were procedurally unfair in [these] circumstances”.
By ground two, the first respondent understands that the applicant is making a three-step argument, which is essentially that:
that the Tribunal’s independent decision-making was compromised by the Member’s reference to the delegate’s reasons for rejecting their applications, against what the applicants say are incontrovertible facts in support of their visa application, which gave rise to apprehended bias.
The Tribunal, by making reference to the delegate’s reasons actually correctly informed itself as to the nature of the decision it was required to make under s 349 of the Act. The Tribunal’s reference to the delegate’s decision is in the context of the Member being required to affirm or remit that decision back to the delegate. Where the Member referred to the delegate’s reasons, this was an opportunity for the applicant to directly address and give evidence to strengthen his evidence in regard to certain points that had not been made out to the delegate. The Member afforded procedural fairness to the applicant pursuant to s 359AA(1)(a) by raising every matter that may weigh against the applicant’s favour. In doing so, the Tribunal decision did not refer to matters that were not directly confirmed or submitted by the applicant during hearing.
The first respondent submits that the Member was “even in tone and open in questioning” (First Respondent submissions;[41]) and the hearing recording indicates that they allowed the applicant to provide all the information necessary for the determination of the review.
The applicant contends at ground two that the Member’s language in saying that the delegate “thought or was not satisfied” regarding their intentions as a genuine entrant was not an “allowable reconstruction”. However, cl 500.212(a) of the Regulations requires the delegate to reach a state of satisfaction in regard to an applicant being a genuine temporary entrant. This does not point to an error of law by the Tribunal.
The Tribunal’s questioning of the applicant only points to the guidance given by cl 500.212(a) and Direction 69 rather than the evidence of a “checklist in the member’s mind” as argued by the applicant. The Tribunal was bound to apply the relevant law and as an extension of that duty, to consider the matters in Direction 69.
The Tribunal’s references to the delegate’s decisions were opportunities for the applicant to give more information, clarify or give fresh evidence and do not demonstrate that the Tribunal was not acting independently of the delegate.
The applicant alleges apprehended bias against the Tribunal by alleging that the views of the delegate dominated the hearing to an extent that it can be concluded that the Member did not bring an “open mind to its task”.
The legal test for apprehend bias is whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand; (see: Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at [434]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]). The role of a Tribunal Member is naturally inquisitorial and may require “robust” and “forthright” (First Respondent’s written submissions filed on 13 September 2024; [47]) investigation of the applicant’s claims. Apprehended bias has been proven in Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41 where the Tribunal Member was found to have asked irrelevant questions based on incorrect assumptions, where there was an unfair denial of an interpreter and a failure to address the central legal issue under review.
The first respondent submits that no apprehended bias arose in the applicant’s circumstances. The hearing record would not lead to a reasonable apprehension that the Tribunal did not bring an impartial or unprejudiced mind as they stated at the hearing that they would come to a fresh decision. The Tribunal’s questioning was in line with the requirements of Direction 69 and did not go beyond that. The applicant was given opportunities throughout the course of the hearing to provide more evidence or seek confirmation if necessary. The Tribunal also engaged with the first applicant’s representative.
The applicants’ complaints that firstly, their evidence was not accepted and secondly, the Tribunal referring to the delegate’s decision for not granting the visa do not rise to constitute an allegation of apprehended bias. The first complaint invites impermissible merits review, and the second complaint evidences the Tribunal providing procedural fairness.
The first respondent addresses the applicants’ complaints at the top of page 12 of their submissions where it reads:
“the problem is essentially that he gave no guidance to the applicant in relation to other things that he may say in the event that he was asked or permitted or invited to comment. The procedure was unfair.”
The applicant continues to claim that the Tribunal did not afford them procedural fairness, despite already being on notice about the position of the delegate in relation to the fact in issue. The applicant was also assisted by a representative at the hearing who would or should have prepared the applicant to address any points made by the Tribunal.
In relation to the applicants submitting that the findings at [20], [21] and [22] of the Tribunal decision were “unreasonable”, it is submitted that the standard for unreasonableness requires proof that there is no “evident and intelligible justification”; (see: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76], per Hayne, Kiefel and Bell JJ). The applicant’s agreement or contention with the Tribunals findings has no bearing on the logic drawn from the evidence.
The applicant submissions attempt, with its contentions in regard to [17] and [25] of the Tribunal decisions, to invite the Court to pursue impermissible merits review under the guise of grounds of bias and a lack of independence by the Tribunal. The applicant must make out the ground of apprehended bias in order to assert that the decision has been tainted by it. Ground two should be dismissed, as no error of law has been made out on the ground of apprehended bias.
As to ground three, the applicants were invited to and attended a hearing, pursuant to the invitation prescribed at s 360 of the Act. It can reasonably be said that the applicants were put on notice about “issues arising in relation to the decision under review”; (see: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]). The first applicant was afforded an opportunity, by way of the hearing to address the issues identified and satisfy the decision maker that they were a genuine temporary entrant. The hearing style permitted the applicant to give viva voce evidence.
Section 359A provides that:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non - disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
The information before the Tribunal had been provided by the applicant for the purposes of the review of the visa application under s 359A(4)(b), given during the process leading up to the decision s 359A(4)(ba) or it was the subject of the discussion had between the applicants and Tribunal at the hearing under s 359AA. Ground three should be dismissed on the basis that the applicants do not specify why they should have been given further notice of the key issue.
Ground four argues that the Tribunal did not properly analyse the application of Direction 69 to the application and failed to consider how they were supposed to comply with the Direction.
The first respondent submits however that the Tribunal decision sets out at pages two (2) and three (3) of its decision the applicability of cl 500.212(a) and Direction 69, which both allow the decision maker to take into account “any other relevant matters”. This satisfies and is a sufficient description of the applicability of the law and considerations the Tribunal had to make.
The applicability of Direction 69 to the Tribunal’s decision is derived from s 499(1)(a) of the Act whereby it performs its function under Part 5 Division 5 to review the delegate’s decision. Kaur v Minister for Home Affairs [2019] FCA 2026 (Kaur [2019]) at [30], directs that:
“the Minister has made a Direction [69] which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a “guide” in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a “checklist”; rather they are to guide a decision maker “when considering the applicant’s circumstances as a whole”
Direction 69 applied to the Tribunal therefore they did not need to undergo a process of assessing whether or not they should apply it.
At grounds five and six the applicants argue that Direction 69 did not apply to the Tribunal at all which appears to require an alternative reason to ground four where they argue that Direction 69 did apply. In relation to ground five, the Tribunal did not err by applying Direction 69 and complying with its guidance and was required to apply the same law as the delegate.
As to ground six, the first respondent contends that Direction 69 does bind the Tribunal, and the Member was not in error by assuming that Direction 69 applied to the Tribunal. These grounds do not make out jurisdictional error as the Tribunal would still be bound to comply with cl 500.212(a), which in its reasoning would be equal to that used in applying Direction 69.
In ground seven, the first respondent highlights that the applicant appears to accept that Direction 69 applied to the Tribunal by arguing that the Tribunal showed “unconsidered total disobedience” to the Direction (App subs, [14]). This ground should be dismissed.
Similarly in ground eight, the applicants argue that in applying Direction 69, the Tribunal should have set it out in a way that identifies which considerations went for or against the applicants. In order for this ground to have merit, the applicants would have to accept that Direction 69 applied. The first respondent contends that Direction 69 preserves the independence of the individual decision maker. By merely requiring decision makers to have regard to and comply with cl 500.212(a) this does not compromise the integrity of the decision maker. The elements as required by Direction 69 and cl 500.212(a), in favour of or not in favour of the applicant, were clearly identified.
By ground nine, the applicant argues that there were no adequate reasons given for the rejection of their evidence. The applicant challenges findings of the Tribunal in 12 paragraphs of the decision. The Minister submits that they would not be able to do this if they could not discern the reasoning process of the Tribunal in the first place. The first respondent relies on Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, at [507] where Woodward J described how an unsuccessful applicant may understand the adequacy of reasons:
Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.
The Tribunal was not required to put to the applicants its subjective appraisals, thought processes or determinations; (see: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at [24]). There is no jurisdictional error established in the reasons of the Tribunal and as such this ground should be dismissed.
CONSIDERATION OF THE GROUNDS
The Court notes the intermingling of a number of themes throughout the grounds of judicial review, principally a submission as to bias and secondly the applicability of Ministerial Direction 69 to a Member of the Tribunal undertaking merits review. It is useful to deal with these matters first and only then undertake a detailed examination of the no less than nine grounds of judicial review, in the light of the Court’s findings on these matters.
The Court has considered carefully the applicant’s written submissions as well as the ‘Notes re Ministerial Direction 69 and s 499 of the Migration Act, Context: rhetoric, mandate, propaganda’ provided at hearing. The Court notes this last document is devoid of any reference to case law that might assist in supporting the propositions being put. Curiously, at page three of the document, Counsel for the applicant sets out questions he posed to ChatGPT. While the Court acknowledges the significant advances made in artificial intelligence tools freely available to the public, they have not reached the stage where they have been accepted by the Courts as either binding precedent or even of persuasive importance. The Court places little weight on this part of the document. Further, the document can best be described as putting forward more philosophical contentions rather than legal argument in the strict sense.
It is convenient to deal with the issue as to the applicability of Ministerial Direction No 69 to the Tribunal initially. Direction No 69 was made by the then Minister for Immigration, Hon Peter Dutton, with a commencement date of 1 July 2016, pursuant to the power to give such directions under s 499 of the Act. In the section headed “Application” on page 2 of the Direction, the following appears:
This Direction also applies to members of the Administrative Appeals Tribunal who review decisions of primary decision makers in relation to a Student visa or a Student Guardian visa.
In Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, Whitlam and Gyles JJ held at [16] – [18] the following:
16. This submission raises similar, but not identical, issues as are involved in the primary judge's conclusion that the reasons of the Tribunal were, in fact, in accordance with the Direction. In view of our finding as to the error of law, it is unnecessary to pursue this latter argument to its conclusion. Underlying each is the question as to whether there is any relevant difference between applying the Policy on the one hand, or the Direction on the other, in the circumstances of this case. Even if the Direction did not bind the Tribunal at the time of its decision, it will certainly bind the Tribunal if the case is returned to it.
17. The most obvious difference between the two is that the Direction must be followed by reason of s 499 of the Act, whereas the Policy might be taken into account in the manner discussed in various decisions of the Court. Whilst this is a radical difference, its significance is lessened, and perhaps eliminated, in the present case as it appears the Tribunal may in truth have set out to give effect to the Policy.
18. This brings into sharp focus the content of the Policy compared with the Direction. In considering the question, it should be borne in mind that the Direction is not simply a list of relevant matters, it describes a process of decision-making….
Based on the plain reading of s 499, together with the content of Direction No 69, and the above quote, the Court is satisfied that the Tribunal was first required to adhere to the content of Direction No 69 and in so doing follow the decision-making process set out within the Direction. In so doing the Tribunal was applying the requirements of cl 500.212 of Schedule 2 to the Regulations as to the relevant matters affecting any decision if the applicant was a genuine temporary entrant for the purpose of study. The Court also notes that both cl 500.212 and Direction No 69 enable a decision maker being able to take account of ‘any other relevant matter’. The Direction applied to the Tribunal as a matter of law.
The Court now turns to the issue of bias. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
The law in relation to apprehended bias is well known. In Charisteas v Charisteas [2021] HCA 29 at [11] the following was said:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits…
Ground two relies upon a plethora of particulars said to evidence an apprehension of bias. These include but are not limited to a claim of predetermination of the issues, a desire to preserve comity between the Tribunal and the delegate, deference to the decision under review, failing to conduct the hearing as a de novo hearing and creating the appearance that the Tribunal was no more than rubber stamping the delegate’s decision.
Both the audio recording and the transcript reveal the presiding Tribunal Member adopted an entirely orthodox approach to the conduct of the hearing. The Member began, in a group introduction, by outlining that the Tribunal is independent and not bound by the decision the decision of the Department, and he would be making a new decision (Ex B, p2). The Member outlined he had read the applicant’s application, the evidence sent to the Tribunal prior to the hearing and any evidence given in the hearing.
The possible outcomes of the hearing were stated. Specific reference was made to the fact that in order for a visa to be granted, the applicant needed to satisfy the criteria provided in cl 500.212.
At the commencement of the hearing specific to the applicant, the Member stated (Ex B, p3), the issue for him to determine was that the delegate did not believe the applicant was a genuine temporary entrant. It was also noted the applicant had already been provided with a copy of Ministerial Direction No 69.
What follows is a discussion between the Member and the applicant as the various matters set out in Direction No 69 relevant to the applicant. This included his migration history, study history, his personal circumstances and the fact there was nothing by way of an impediment to the applicant returning home, for example military service requirements (Ex B, p5). Further, more expansive evidence is then contained in in the balance of the transcript, in response to specific questions from the Member. Towards the end of the hearing, the Member asked the applicant’s representative to make a statement on his behalf (Ex B,p10).
Having listened to the audio recording of the hearing, the Court is reasonably satisfied that there was nothing in the manner of questioning or the tone of the Member’s questioning, that could give rise to any apprehension of bias. It was business like, with the Member seeking to elucidate additional material from the applicant and his representative that would assist him in his decision. The applicant was free to answer the questions and not restricted or cut off by the Member. The invitation to the applicant’s representative also allowed a full statement to be given by him.
The Court can see no logical connection between the various complaints and the various particulars relied upon within those complaints, made by the applicant, including any submission that the Member’s decision was somehow tainted by use of Ministerial Direction No 69 and a feared departure from deciding the matter on its merits. The allegations of bias have no merit.
There is one further matter that the applicant appears to rely upon that is intermingled within the applicant’s submissions relating to ‘Proof of intent’ as it relates to the applicant’s intentions.
In this case the Member sought and received information from the applicant as to the relevant matters set out in both cl 500.212 and Direction No 69. The Court is not satisfied that Bosanac is relevant to a determination by a Member if the applicant meets the GTE requirements. The Court agrees that the applicant’s stated intent was but a part of the overall global facts the Member was required to consider. Any suggestion that the Member was bound by what the applicant stated was his intent is not supportable. It was for the Member to decide based on all the evidence whether the applicant met the GTE criteria. That is precisely what he did. The submission has no merit.
The Court now turns to deal with the grounds of judicial review in detail.
Ground one
Ground one is a broad allegation of a denial of natural justice by either failing to ensure the applicant was aware of the issues arising under the review or confining the issues at the hearing to the matters under review.
First, the Court is satisfied that the applicant was properly invited to the hearing as required by s 360 of the Act. The only matter in issue was the decision of the delegate that the applicant did not meet the requirements of a GTE. The applicant was requested, and in fact did, subsequently provide to the Tribunal additional information relating to the various matters that the Tribunal would consider in relation to whether he met those criteria. There could be no doubt in the applicant’s mind, given he was provided with a copy of the delegate’s decision of what the matters were in issue. The Court is satisfied that “there is no viable basis on which to suggest that the review proceedings before the Tribunal were procedurally unfair in [these] circumstances”; (see: Kaur [2024] at [47]). Ground one has no merit.
Ground two
Ground two is a broad-based allegation of bias, by reference to, no less than 12 particulars. As set out above, there is simply no evidentiary basis to support the allegation that the Member had predetermined some or all of the issues, did not make his own independent decision, conducted the hearing in a manner that might give rise to a perception of bias, acted upon unevidenced concerns of the delegate, failed to allow the applicant to address the matters contained within Ministerial Direction No 69 or gave the appearance of merely rubber stamping the delegates decision.
The Court does not accept that the issue for determination was ‘confronting’ to the applicant. The Court is satisfied the applicant was well aware that the issue for determination was whether he met the criteria for being a GTE. This much was apparent from the delegate’s decision. There is no evidentiary basis to support the assertion that the applicant’s credibility was being attacked in the hearing. There is no evidence that the Tribunal Member was scornful or lambasting. Any suggestion that the Member used a checklist cannot be supported. The Member is specifically directed by Direction No 69 to consider the matters contained within it, as well as any other relevant matter. It is thus both unsurprising and orthodox that a Tribunal Member, in a matter such as this, would go through the various matters contained within the Direction and seek either fresh evidence or clarification of evidence previously given in relation to such matters. Notwithstanding the applicant’s repeated allegations and the disjointed submissions, there is no basis upon which this Court can be satisfied as to an apprehension of bias. Ground two has no merit.
Grounds three to eight
Grounds three to eight can be dealt with together. The respondent submits that these grounds are a complaint that Direction No 69 did not apply to the Tribunal and the Tribunal fell into error by applying it (grounds four – eight). Further, the applicants suffered procedural unfairness because the Tribunal did not notify the first applicant during and after the hearing of any reason for which the application may be denied (ground three).
For the reasons set out above, the Court is satisfied that Ministerial Direction No 69, is first of all, a properly constituted Direction pursuant to the power conferred upon the Minister under s 499 of the Act. Secondly, the Court is satisfied that the Tribunal in considering this particular matter, was bound to apply the directions contained within Direction No 69, as to the process it followed in coming to its decision. In so doing, the Court finds no jurisdictional error occurred in relation to the various matters alleged in the grounds of judicial review. The Court is satisfied that the applicant was clearly put on notice that the matters contained within the Direction would be taken into account as part of the decision-making process. Further, the Court is satisfied that the Tribunal considered the entirety of the evidence that was before it and did not restrict itself to the oral evidence given in the Tribunal hearing.
The Court is satisfied the applicant was properly invited to the hearing pursuant to s 360 of the Act. Information before the Tribunal was given by the applicants for the purpose of the application for review, and was the subject of discussion between the applicant and the Tribunal in accordance with the provisions of section 359AA. The Court is not satisfied that there was any further information that was required to be given to the applicant pursuant to the procedural fairness obligations contained within Division 5, Part 5 of the Act which are “an exhaustive statement of the requirements of the natural justice hearing will in relation to the matter’s it deals with’; (see: s 357A). Ground three has no merit.
Ground four, is again an argument in relation to the applicability of Direction No 69 to the Tribunal. As set out above, the Court is satisfied that the direction is lawful and the Tribunal is required to have regard to what is regards to matters that should be considered but not that must be considered. It is not to be used as a checklist;( Kaur [2019] at [30] per Steward J). The Court is satisfied that the Decision record properly sets out the requirement of the Tribunal to have regard to cl 500.212 and Direction No 69, and the Tribunal did not in any way misguide itself as to the manner in which it was to conduct the review. Ground four has no merit.
Grounds five and six are somewhat internally illogical in nature, in that either the Tribunal was required to comply with Direction No 69 or that it did not apply to the Tribunal. The assertion appears to be that the Direction applies to delegates but not to the Tribunal. The logic, submitted by the respondent, and with which the Court agrees, appears to be because Tribunal Members outrank delegates, and are appointed independent decision-makers, the Direction improperly appears to fetter the discretion or independence of the Tribunal. The Court does not accept either of these submissions. The Tribunal, in conducting its review, properly set out at the beginning of the hearing that it stood in the shoes of the original decision maker and was remaking the decision.
However, in doing so, the Tribunal was bound by the same law and policy as applied to the delegate. There is nothing that amounts to jurisdictional error in relation to that statement. Further, in conducting the review, the Court is satisfied that in considering the matters set out in the Direction, the Tribunal did not go beyond matters which would have been relevant to the consideration of the criteria in cl 500.212(a). The Court agrees with the submission that in applying the direction, this of itself was an application of the reasoning required under cl 500.212(a). Grounds five and six have no merit.
Ground seven is an assertion that the Tribunal committed jurisdictional error by complying or apparently complying with the Direction or parts of the Direction that the Member was not required to comply with and is again, an attack on the legitimacy of the Direction. Paradoxically, for this ground to succeed, the applicants would have to accept that the direction applied in order to argue that its application should have been set out in a certain way by the Tribunal.
The Court is satisfied that nothing in the Decision Record indicates that the Tribunal in any way used the factors specified in the Direction as a checklist and that the Tribunal was free to weigh the various pieces of evidence in such a manner as it thought fit. The Court is satisfied the Tribunal applied its own independent decision-making power in applying Direction 69 and that in merely complying with the Direction, did not commit any error. Ground seven has no merit.
Ground eight is again an attack on Direction 69 alleging that it was in whole or part vague, uncertain, unsatisfactory and incapable of application as a mandate or at all, and further alleges that it undermines the appearance of the integrity and independence of the Tribunal in that it is subject to direct or indirect dictation by the executive. The Court is satisfied that in the Decision Record, the Tribunal identified and set out whether or not each of the requirements under cl 500.212 and the Direction. Consideration was then given as to whether they were in the applicants favour or not. This was by reference to the evidence that was before the Tribunal. The reasoning in the decision clearly sets out a rational and legitimate basis for coming to the conclusion the Tribunal did. Ground eight has no merit.
Ground nine is a complaint as to the treatment of the applicant’s evidence and weighting that it was given in the findings made by the Tribunal.
It is well established that 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]).
A reading of the totality of the Tribunal’s reasons does not reveal any illogicality or irrationality in the factual conclusions that were arrived at. There is a clear evidential basis for each of the findings. The Court is satisfied that the applicants would be able to discern the reasoning process of the Tribunal in coming to its decision. Further, the Tribunal was not required to put the applicant on notice of its objective appraisals, thought processes or determinations;(see: VAF v MIMA [2004] FCAFC 123 at [24]). The Court is not satisfied that this ground establishes any error or combination of errors that are jurisdictional in nature. Ground nine has no merit.
In these circumstances, the application must be dismissed.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate: S.S
Dated: 11 October 2024
SCHEDULE OF PARTIES
MLG 3289 of 2019 Applicants
Fourth Applicant:
AYDEN GABRIEL RAJ
Fifth Applicant:
ARIELLE ASHLEY RAJ
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