Raja v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 934

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Raja v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 934  

File number(s):

MLG 3834 of 2018

Judgment of:

JUDGE CHAMPION

Date of judgment:

20 October 2023 

Catchwords:

MIGRATION LAW – Student (Subclass 572) visa – whether the Tribunal misapplied, misconstrued or misunderstood Ministerial Direction No. 53 – Whether the Tribunal’s reasoning was legally unreasonable  – Whether it should be inferred that the Tribunal relied on personal or specialised knowledge – Whether the Tribunal denied the Applicant procedural fairness by misleading the Applicant as to a critical issue – Whether the Tribunal failed to assess the Applicant’s intentions at the time of decision – Application dismissed

Legislation:

Migration Act 1958 (Cth) ss. 360, 499

Migration Regulations 1994 (Cth) cl. 572.223

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 215 CLR 1; [2003] HCA 6

Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177; [2018] FCAFC 174

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Division:

Division 2 General Federal Law

Number of paragraphs:

67

Date of last submission/s:

12 September 2023

Date of hearing:

12 September 2023

Place:

Melbourne

Counsel for the Applicant:

Mr J Lessing

Solicitor for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the Respondents:

Mr J Barrington

Solicitor for the Respondents:

Mills Oakley

ORDERS

MLG 3834 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MUHAMMAD TAFSIR UL HAQ RAJA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	20 OCTOBER 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.

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 CHAMPION:

INTRODUCTION

1. By an amended application filed 18 August 2023, Mr Muhammad Raja (Applicant) seeks judicial review of an Administrative Appeal Tribunal decision. The Tribunal affirmed the decision of a delegate of the First Respondent (Delegate) refusing to grant the Applicant’s Student (Subclass 572) Visa.

2. For the reasons set out below, the application will be dismissed.

   BACKGROUND AND PROCEDURAL HISTORY

3. The Applicant is a citizen of Pakistan.

4. On 18 September 2010 the Applicant arrived in Australia holding a Student (Subclass 573) visa in order to complete a Diploma of Information Technology (CB 379).

5. On 13 March 2015, the Applicant applied for the Visa (CB 1–38).

6. The Delegate was not satisfied the Applicant met cl. 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth), which required the Minister to be “satisfied that the applicant intend[ed] genuinely to stay in Australia temporarily…” [Emphasis added] (GTE Criterion).

   Tribunal Decision

7. On 13 November 2018, the Tribunal affirmed the decision of the Delegate and provided written reasons (CB 367–396). The Tribunal had regard to Ministerial Direction No. 53 (Direction 53) as required by s. 499(2A) of the Migration Act 1958 (Cth): Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 at [19] (French CJ, Kiefel, Bell and Keane JJ).

8. In its “Conclusions”, the Tribunal summarised its reasons for its finding that the Applicant did not satisfy the GTE Criterion as follows: (TD, [173]; CB392–393)[1]:

   [1] References to the Tribunal’s Decision are marked “TD”. References to the Applicant’s and First Respondent’s submissions are marked “AS” and “RS”, respectively.

   ·While Mr Raja says there is no impediment to him returning to Pakistan, he appears to have only modest incentive to return as his financial ties to Pakistan can be managed by family or from Australia and his stated desire to care for his mother is not consistent with his recent, if ill-fated, application for a visa to remain in Australia permanently, an application which if successful would have enabled him to reunite with his wife in Australia rather than returning to Pakistan to do so;

   ·The presence of Mr Raja’s wife in Pakistan provides some incentive to return to Pakistan, but it is clear to the Tribunal from Mr Raja’s evidence that he does not see it as necessary to return to Pakistan to be reunited with her, leading the Tribunal to give this consideration only modest weight;

   ·Mr Raja has a strong incentive to maintain residency in Australia where on his own evidence he is well established, has close family, extensive social connections and earns significantly more than he will earn in Pakistan either as an employee chef or manager or operating his own restaurant;

   ·Mr Raja does not have the academic record of a genuine student having completed only four years of study at the relatively inexpensive Vocational Education and Training sector level in over eight years in Australia with 18 course cancellations, at least 10 of which were within Mr Raja’s reasonable control;

   ·Mr Raja has changed the focus of his studies four times from information technology to management to automotive to cooking and hospitality in circumstances the Tribunal did not find convincing for the reasons noted above and in February 2018 applied for (but subsequently withdrew) a permanent visa to be a full time automotive mechanic undermining the credibility of his evidence that since March 2015 his passion and focus has been on becoming a qualified and experienced chef and that he had clear plans to work in a hotel in Pakistan and eventually open his own restaurant there. This caused the Tribunal to doubt the credibility of his future plans and the value of his current and proposed future studies to his future career, leading the Tribunal to find that Mr Raja is using the Student visa program to circumvent the intentions of Australia’s migration program; and

   ·Mr Raja was not convincing in explaining the circumstances that led to him accepting a full time position to be an automotive mechanic in Ballarat in late 2017 and applying for a permanent visa to remain in Australia in early 2018, causing the Tribunal to doubt his evidence in relation to his current study and future plans. This led the Tribunal to the view that Mr Raja is using the Student visa program to maintain residence in Australia rather than to study, progress academically and return to Pakistan or another country.

   APPLICATION FOR JUDICIAL REVIEW

9. The amended application sets out four grounds of review.

   Ground 1: Did the Tribunal misconstrue, misunderstand, or misapply Direction 53?

   The Tribunal must comply with Direction 53

10. Direction No. 53 (Direction 53) is a direction made under s. 499(1) of the Act titled “Assessing the genuine temporary entrant criterion for Student visa applications” (CB142).

11. The obligations imposed by Ministerial Directions, and relevantly in this case, Direction 53, “are, and are intended by the scheme of the Migration Act by reason of the presence of s. 499(2A), to be an essential or inviolable limitation on the power conferred by the Migration Act”: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [39] (Mortimer J, as she then was). Further, in Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 Derrington and Thawley JJ held at [29] (Logan J agreeing):

    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.

    The relevant clauses of Direction 53

12. Part 2, clauses 9(b), 9(c) and 10 of Direction 53 were as follows:

    The applicant’s circumstances in their home country

    9. In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:

    […]

    b.The extent of the applicant’s personal ties to their home country (for example, family, community and employment) and whether they would serve as a significant incentive to return to their home country.

    c.Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. This may include consideration of the applicant’s circumstances relative to the home country and to Australia.

    […]

    10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The Applicant’s submissions before the Tribunal which engaged Direction 53

13. In its reasons, the Tribunal quoted the Applicant’s written submissions before it, referable to Direction 53 (TD [56]; CB377–378).  The extracted paras. [23]–[25] of the Applicant’s written submissions before the Tribunal were as follows:

    23.There are no adverse economic factors or military service commitments which would prevent the Review Applicant from returning to his home country, nor is the political and /or civil unrest that any way (sic) impacts the Review Applicant. He instructs that he [sat the medical tests but] was [not] formerly accepted into the Pakistani military, however he never trained with the Pakistani Army, never joined the Pakistani military and doesn’t intend to join upon his return to Pakistan.

    24.The Review Applicant has significant familial ties in Pakistan, most importantly, his wife of nearly 3 years. He also has his widowed mother, one brother and two sisters, in addition extended family (sic) and friends living in Pakistan.

    25.The Review Applicant, who comes from a reasonably wealthy middle-class family in Pakistan, owning various property and land (see annexure 21) (sic). His family has also invested in a shoe franchise called “Servis” which his family own the rights to sell “Servis” shoes … which the Review Applicant’s widowed mother and siblings live off.

    [As written]

    The Tribunal’s reasons

14. The Tribunal correctly noted that it had to have regard to Direction 53 (TD [54]; CB377) (YNQY, Kumar, above). It further correctly noted that the factors were not to be used as a “checklist” but were “intended to guide decision makers to weigh up the Applicant’s circumstances as a whole …” (Part 2, cl 1) (TD [55]; CB377). 

15. The Tribunal’s findings at [63]–[64] (CB379) directly referable to the relevant clauses of Direction 53 were as follows:

    63.The Tribunal finds that the above evidence indicates that Mr Raja has familial, social, financial and cultural ties to Pakistan which indicate he has a comfortable life in Pakistan compared to others and this provides some incentive for him to return to Pakistan.

    64.The Tribunal notes that Mr Raja’s financial ties to Pakistan, including his land holdings, have been managed by his family to date or by Mr Raja from Australia and it would appear, on Mr Raja’s evidence, that they could continue to be so managed. The Tribunal finds that Mr Raja’s financial ties to Pakistan do not, of themselves, provide substantial incentive for him to return to Pakistan.

16. As I have set out below, in my view, the Tribunal also considered relevant facts for the purposes of cl. 9(c) at a later point in its reasons when it considered the Applicant’s substantially higher earnings in Australia with what he might expect to earn if he returned to Pakistan (TD [99], CB384).

    The Applicant’s submissions as to Ground 1

17. By Ground 1 the Applicant submitted that the Tribunal misconstrued, misunderstood or misapplied Direction 53.

18. The Applicant’s submissions as to Ground 1 were as follows:

    (a)that the Tribunal misunderstood or misapplied cl. 9(c) of Direction 53 at TD [64];

    (b)alternatively, if in fact the Tribunal was addressing cl. 9(b) at TD [64], it misapplied cl. 9(b); or

    (c)in the further alternative, the Tribunal failed to consider cl. 9(c).

19. The Applicant submitted (AS [13]–[14]):

    13.However, at [64] of its decision, the Tribunal found that the applicant’s “financial ties to Pakistan do not, of themselves, provide substantial incentive for him to return to Pakistan”. The Tribunal focused upon whether there were “financial ties” (in other words, economic circumstances) which would provide a positive incentive for the applicant to return to Pakistan. This is not what the Tribunal was required to consider by cl 9(c).

    14. Clause 9(c) directs attention to economic circumstances in Pakistan which offer a significant incentive not to return. This is a factor the Tribunal must consider in its assessment of an applicant’s circumstances in their home country. The focus of the inquiry is fundamentally different to that embarked upon by the Tribunal. Accordingly, it should be inferred that it misunderstood or misapplied cl 9(c) of Direction 53 or otherwise failed to consider that consideration.

    [Emphasis added; citations and original emphasis omitted]

    Consideration of Ground 1

20. Clauses 9(b) and 9(c) of Direction 53 are two sides of a coin. Clause 9(b) requires a decision-maker to focus on personal ties which would serve as a significant incentive for an applicant to return to their home country. Clause 9(c) focuses on the other side of the coin:  circumstances which would present as a significant incentive for an applicant not to return to their home country, including “the applicant’s circumstances relative to the home country and to Australia”.  Somewhat colloquially, the cl. 9(b) factors are the “pull” factors for an applicant to return to their home country and, in contrast, cl 9(c) factors create an incentive for an applicant to remain in Australia: “remain” factors.

21. At [63]–[64] of its reasons (CB379), the Tribunal considered ties which might serve as a significant incentive for the Applicant to return to Pakistan including familial ties and  financial ties. That is, the Tribunal focused on cl. 9(b) matters. As a result, contrary to the Applicant’s submissions, I do not read [63]–[64] as a misapplication of cl 9(c) of Direction 53 but rather as a consideration of cl 9(b) factors.  The Tribunal did not accept that the cl. 9(b) “pull” factors for the Applicant to return to Pakistan were as strong as he submitted particularly because others in Pakistan were managing his financial affairs and could continue to do so.

22. Alternatively, the Applicant submitted that if, in fact, the Tribunal in its reasons at [64] was dealing with cl. 9(b), the Tribunal had misapplied cl. 9(b) because it considered ties that would serve as a “substantial incentive" for him to return to Pakistan rather than considering whether those ties provided a “significant incentive to return.”  There is no relevant difference between “substantial" and “significant” in this context and I do not accept that submission.

23. In the further alternative, if the Tribunal’s reasons at TD [64] were directed to cl. 9(b) and not cl. 9 (c)(as I have found), the Applicant submitted that the Tribunal committed a jurisdictional error because it overlooked cl. 9(c) and thereby failed to comply with Direction 53: Kumar (above) at [29].  

24. It was common ground that the Tribunal did not expressly advert to cl. 9(c) in its reasons. My analysis is that notwithstanding that it did not expressly refer to cl. 9(c) the Tribunal at a later point in the reasons (TD [71] (CB380), TD [99] (CB384) and TD [105], (CB385)) did consider 9(c) factors. It expressly considered the Applicant’s Australian earnings relative to his expected earnings should he return to Pakistan and that his expected earnings in Pakistan would be “less than half of what [he…] is earning in Australia.” (TD [99], CB384). Acknowledging that the Applicant also challenges this finding under Ground 2(b) on the basis that there was no evidence for the Tribunal to make a relative assessment of the cost of living in Pakistan and Australia, on the face of the reasons at TD [99] the Applicant’s significantly higher relative earnings in Australia “presented as a significant incentive for the applicant not to return to their home country”, a matter to which the Tribunal had to have regard (and did have regard to) under cl. 9(c) because the Tribunal had to consider “relative” factors in each country.

25. Alternatively, if it is to be inferred from the fact that this discussion of the Applicant’s relative earnings appeared at a later point in the reasons (as structured) that the Tribunal was not then considering cl 9(c) (which despite the structure of the reasons is contrary to my reading of them), in any event the Applicant has not proved that any failure to consider cl 9(c) was overlooked or, if it was overlooked, was a material error.  In Kumar, Derrington and Thawley JJ held at [83] that each factor must be considered in the decision-making process but “whether it should be adverted to in the statement of reasons is a different question.”  On this analysis of the reasons, the issue is whether the appropriate inference is that cl. 9(c) was overlooked. As their Honours observed at [83] in Kumar: “the appropriate inference to draw might be informed by […] the prominence or importance of the particular matters said to have been overlooked”. 

26. The Applicant’s submissions as to cl. 9(c) were cursory. They were confined to a statement that there were “no adverse economic factors … which would prevent the Review Applicant from returning to his home country” (see TD [56] (CB377-378); para 23, Applicant’s written submissions, 13 June 2018, CB204). The Applicant’s statement annexed to the submissions (CB215–223; also dated 13 June 2018) did not develop the matter.

27. By reference to those documents, the Applicant had not put any detailed submissions which engaged cl. 9(c). The Tribunal in fact found that there were economic circumstances (a differential in relative earnings) that would present as a significant incentive for the Applicant not to return to Pakistan and to remain in Australia. The Tribunal otherwise accurately identified the submission the Applicant made and its reasons were comprehensive (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184, at [47]). It had expressly considered in the reasons prominent and important cl. 9 matters (see TD [58] as to cls 9(d) and 9(e) and see TD [63]–[64] as to cl 9(b)). Because of the way the Applicant framed his case — other than the discussion of relative earnings I have identified above — cl. 9(c) had very limited “prominence or importance”: Kumar at [93]. It is to be remembered that Part 2, cl. 1 of Direction 53 sets out that “decision-makers should not use the factors specified in this direction as a checklist.  Rather, they are intended to guide decision-makers” (Emphasis added). There was no requirement that the Tribunal “check off” cl. 9(c) from a checklist.  A matter may be considered although it is not expressly referred to in the reasons: Kumar, [83]. In the circumstances, I do not draw an inference that the factors referred to in cl. 9(c) were overlooked. 

1. Ground 1 has not been made out.

   Ground 2: Did the Tribunal reason in a way that was irrational, illogical or unreasonable or lacked a probative basis?

2. In Ground 2, the Applicant contended that the Tribunal reasoned in a way that was illogical or irrational. Legal unreasonableness may be outcome-focused but may also extend to an irrational, illogical or unreasonable reasoning process en route to the result. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] the Full Court held:

   An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   [Emphasis added]

3. The Applicant impugns two Tribunal findings made “along the way” before it found that it was not satisfied that the Applicant met the GTE Criterion. I will deal with each in turn. Although the Tribunal’s reasoning “along the way” may lead a decision to be characterised as legally unreasonable, in circumstances in which the Applicant focuses upon two particular factual findings it is important to consider the impugned findings in the context of the broader reasons and to pay careful attention to the Tribunal’s actual conclusions to those matters: (see TD [122], CB387 below).

   (a)     The Applicant’s management of his enrolment

4. The Applicant submitted that the Tribunal’s findings about the management of his enrolment in a Certificate III in commercial cookery “had no rational connection to his intention to stay in Australia temporarily as of 13 November 2018. At best, it is a criticism of the applicant’s organisational or planning capabilities” (AS, [20]).

5. In April 2015 the Applicant first enrolled in a Certificate III in commercial cookery. The Tribunal noted (as was the fact) that it “took Mr Raja over three years to complete the one-year course” (TD [100], CB384). The Tribunal found that while some delay was outside the Applicant’s control, the Tribunal further found that some delay was within the Applicant’s control (TD [102], CB385) because the Applicant extended his stay in Pakistan to organise his wedding and that this was a situation he could have “relatively easily better managed” (TD [116], CB386).

6. The Applicant’s “study history” (emphasised in the extract below) was one of myriad factors which cumulatively supported the Tribunal’s conclusion at that it was not satisfied that the Applicant met the GTE criterion as follows (TD, [122]):

   The Tribunal finds that Mr Raja’s study history, particularly the regular changes to his field of study, his broad and changing plans or purpose of study, his comparatively significant income and the presence of close relatives in Australia reveals that his is not in Australia genuinely temporarily to study but on balance is using the Student visa program to circumvent the intention of Australia’s migration program by extending his stay in Australia for what appears to the Tribunal to be as long as possible.

   [Emphasis added]

7. The Tribunal’s reasoning ‘along the way’ — that the fact that the Applicant had decided to stay in Pakistan to get married was one factor within his control that led him to take three years to other complete a one-year course — was a rational and logical matter (taken together with relevant factors) which supported its ultimate finding that the Applicant was not intending to stay in Australia temporarily.

8. Ground 2(a) has not been made out.

   (b)  Cost of living

9. The Applicant had told the Tribunal that “with the lower cost of living in Pakistan Mr Raja’s evidence is that he will have a more comfortable lifestyle in Pakistan in Australia”: (TD [73], CB380). His evidence did not rise above an assertion of that fact.

10. The Tribunal found that as a chef with a managerial role in Pakistan the Applicant expected to earn “less than half” what he was earning in Australia working mainly part-time: (TD [99], CB 384).

11. The Tribunal found on the basis of an exchange with the Applicant at the hearing that if the Applicant opened a restaurant in Pakistan, he would earn about $13,940 (TD [105], CB388) as compared with the approximately $34,063–$36,500 he had earned in 2015–2016 and 2016–2017 in Australia (TD [71], CB380). The Tribunal made the following finding at (TD [105], CB385):

    The Tribunal discussed Mr Raja’s plans in detail with him. Mr Raja explained to the Tribunal the research he has undertaken for the location of his restaurant, his expected staffing model, capital requirements and cash flow. Mr Raja’s evidence was credible but again, very broad. Mr Raja is initially forecasting an operating profit of PKR1,320,000 per annum which is equivalent to AU$13,940. Mr Raja did state that he expects this to grow over time and it is subject to a number of variables. Based on Mr Raja’s initial planning for his restaurant, it is evident though that he is earning considerably more in Australia, even if cost of living differences between the countries are allowed for, than he will in Pakistan.

    [Emphasis added; footnote omitted]

12. The Applicant submitted (AS 25):

    There was no evidence before the Tribunal, nor any probative basis, on which the Tribunal could have performed a comparative assessment in the cost of living between Australia and Pakistan.

13. The parties agreed in a joint note after the hearing that “it is not a precondition, whether a formal or practical one, to a ground such as that advanced in Ground 2(b) succeeding that evidence be adduced proving the impugned finding to be in fact wrong”. 

14. In answer to Ground 2(b), the First Respondent relied on the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41.  In Viane, the Minister had made findings that English was widely spoken in American Samoa and Samoa and that healthcare, education and some welfare supports were available in either location. The High Court held that the findings were the product of the Minister’s “personal or specialised knowledge”. There is nothing in the Act which prohibited the Minister from using personal or specialised knowledge and the Minister was not expressly required to disclose whether a material finding was made from personal knowledge: Viane at [18].  The High Court further inferred at [18] that the “findings proceeded from the Minister’s personal or specialised knowledge or were matters commonly known”.  It was not to be inferred that the Minister “merely made things up”: Viane at [26]. In my view, the High Court’s observations in Viane at [27] are equally applicable to the Tribunal in  this case:

    Given the store of knowledge the […Tribunal] will have built up over many years, from dealing with individuals from so many countries and territories, the source of such specific observations about conditions in […Pakistan] could only have been from the [Tribunal’s] experience. In that respect, to reiterate, it had not been shown that either observation was incorrect.

15. I accept the First Respondent’s submission that the source of the Tribunal’s finding with respect to the “cost of living differences” between Pakistan and Australia was the Tribunal’s personal or specialised knowledge: see Viane.

16. Because the Tribunal was entitled to rely on its personal and specialised knowledge it cannot be said that there was no evidence on which the Tribunal could make a comparative assessment of the cost of living in Pakistan and Australia. The Tribunal’s observations (TD [105], CB385) were unremarkable having regard to the difference in the Applicant’s earnings in Australia and anticipated earnings should he return to Pakistan.

17. Ground 2(b) has not been made out.

    Ground 3: Did the Tribunal fail to comply with its procedural fairness obligations?

18. In Ground 3, the Applicant contended that the Tribunal failed to comply its procedural fairness obligations provided under s. 360(1) of the Act.

19. The Applicant accepted that he was on notice that there was an issue concerning his earlier application for a Regional Sponsored Migration Scheme (subclass 187) visa (the 187 visa) which was a permanent visa. The Applicant contended that he was denied procedural fairness because “at no stage […] did the Tribunal indicate that the […] 187 visa application itself […] was to be viewed negatively by the Tribunal” (AS, [35]). In the absence of that indication, and in a way in which he submitted denied to him procedural fairness, in its reasons the Tribunal did consider the fact of the 187 visa application to be adverse to the Applicant (TD [149], CB389). The Applicant submitted that the Tribunal denied him procedural fairness because it “obscured” or “minimise[d]” the significance of the 187 visa application during the hearing (AS, [37]–[38]).

20. The First Respondent usefully made submissions (which I accept) as to three general principles as to procedural fairness. First, a decision-maker ought to provide practical, direct, and non-misleading advice to a visa-applicant about the critical matters which will be relevant to an assessment of the application: Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177; [2018] FCAFC 174 at [49]. Secondly, a decision-maker does not have to expose their thought processes or provisional views for comment before making a decision: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9].  Thirdly, as to procedural fairness, “the concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ).

    The conduct of the Tribunal hearing

21. The transcript of the Tribunal hearing (20 and 25 June 2018) was in evidence before the Court.  I accept the Respondent’s submissions (RS [28]) that the Tribunal both provided the Applicant with an opportunity to make submissions as to the 187 visa issue, kept an open mind as to the significance of that issue and did not mislead the Applicant as to an important issue so as to deny him procedural fairness.

22. It is convenient to point out some relevant Transcript extracts.

23. On 20 June 2018 at the hearing, in the context of a discussion of the 187 visa application the Tribunal member said (T15):

    It’s not necessarily improper or incompatible with being a genuine student that you make applications for other visas, but what I’m trying to do in the hearing today is understand what your intentions are, whether you’re here genuinely to study, whether you’re here genuinely to stay temporarily then to return home with hopefully, Australian qualifications […] That’s why I’m asking you more details about this because I want to be clear when this occurred, how it occurred, why it occurred and what you were thinking at the time and what you’re thinking now. There is where I’m going with my questions.

    [Emphasis added]

24. At (T19) the Tribunal held:

    You can still be a genuine student whilst applying for other visas. You're not lawfully--It's not illegal for you to do that. In terms of the hearing today, don't be too concerned about that, but what I need to do is understand all of your circumstances.

25. On 22 June 2018, between the two hearing dates, the Tribunal requested further information: specifically, documentation as to the application for the 187 visa and its subsequent withdrawal (CB287–288). The Applicant’s representative responded on the same day of the request (22 June 2018) with some supporting documentation and a submission (CB289–307). The Applicant’s submission was that (among other matters) an application for a permanent visa did not “exclude” the Applicant from being a genuine temporary entrant. The submission further noted that the application for the 187 visa had been withdrawn (para [7]; CB292).

26. On 25 June 2018, at the resumed hearing, the Applicant’s representative made further oral submissions that any visa application in the past did not suggest that the Applicant was not a genuine temporary entrant at the time of the decision. The Tribunal responded (T38):

    I think I made that point last week that it’s quite common, not common, but it’s not uncommon, Mr. Raja, that people will be in Australia generally to study and then they might apply, they might have a plan B or option B, and if that comes off, terrific. If it doesn’t, it doesn’t mean that they’re still not here generally to study.

    There can be a dual intention. You can have more than one pathway while you’re here. To that extent, I accept the submission.

27. The Tribunal later said (T40):

    Yes, it is not something that I turn my mind to in terms of compelling information. It was [unintelligible] that this information was available. I considered it relevant […] I have an open mind to the information. I don’t particularly consider the information adverse to your client […] There can be that dual intention, but from my point of view, court’s ministerial direction, it’s important that I fully understand Mr Raja’s circumstances and that’s where the any the any other matter criteria come in.

    […]

    We’ll see how the evidence goes today, and then I’ll clarify at the end.

    [Emphasis added]

28. At the hearing’s conclusion, the Tribunal confirmed that it had the information it needed as to the issue of the 187 visa application (T133). The Applicant’s representative and the Tribunal member had this exchange (T134):

    Representative:           Just to be clear, the tribunal doesn’t need any further evidence?

    Member:No, I’m not concerned about having a copy of Mr. Raja’s application for the 187 […] I have a clear understanding of the sequence of events, and based on Mr. Raja’s evidence, why, what happened, when it happened? If you have concerns about being asked on Friday afternoon to provide information for today’s hearing, it wasn’t information that I have of view would be particularly adverse to your client.

    […] I think the information provided about the 187 visa, or the withdrawal at least, help clarify for me what happened when.

29. The Applicant had an opportunity to (and did in fact) put evidence and submissions (including in writing on 22 June 2018) as to the 187 visa issue. He submitted that the application for a permanent visa should not be a matter to which the Tribunal should give any adverse weight particularly given its subsequent withdrawal. The Tribunal afforded to the Applicant a meaningful opportunity to present evidence and arguments in accordance with s. 360.

30. As to a fair hearing, the Tribunal member explicitly stated that the fact of the 187 visa application did not in and of itself show that the Applicant was not a genuine temporary entrant (e.g., T15, T19, T38). It repeated that observation in its reasons (TD [147], CB389). The Tribunal also explicitly said that it was keeping an open mind as to the 187 visa issue (T40). I do not accept any submission that (contrary to its express statement) the Tribunal failed to keep an “open mind” and thereby denied the Applicant a fair hearing. Finally, I do not accept that the various exchanges extracted above (on a fair reading) lead to a conclusion that the Tribunal breached its obligation (explained in Stowers) not to mislead the Applicant as to a critical issue or that it minimised or obscured the 187 visa issue in breach of a procedural fairness obligation.

31. Ground 3 has not been made out.

    Ground 4: Did the Tribunal misunderstand the nature of the assessment to be undertaken under the Genuine Temporary Entrant criterion?

32. By Ground 4, the Applicant contended that the Tribunal misunderstood the nature of the assessment to be undertaken under the GTE Criterion because it considered the Applicant’s withdrawn 187 visa application (for a permanent visa) was relevant to the Applicant’s present intention under the GTE criterion at the time of the decision.

33. It was common ground that the Tribunal had to consider the GTE Criterion at the time of decision: Saini v Minister for Immigration and Border Protection [2016] FCA 858, [30] (Logan J).  The Applicant contended that the Tribunal was in error because “the Tribunal placed substantial weight on the withdrawn application for a 187 visa in ultimately finding that the GTE criterion was not satisfied [in circumstances in which the 187 visa application] had been withdrawn eight months before the Tribunal’s decision” (AS, [43]).

34. In about February 2018 (see: TD [130], CB388) the Applicant had applied for a 187 visa to remain permanently in Australia to work as an automotive mechanic. On 26 April 2018 his application was withdrawn (TD [135], CB388). The Tribunal made its decision on 13 November 2018 and had to make its assessment as to the GTE Criterion as at that time.

35. I accept the First Respondent’s submissions that the Tribunal was “entitled to look at someone’s past conduct when assessing the genuineness of their present intentions”: RS, [47].A person’s immigration history will be part of that past conduct. The fact that the Applicant had applied for a permanent visa some eight months before the Tribunal’s decision (even if the Applicant had withdrawn the application) was probative of whether the Applicant genuinely intended temporarily to stay in Australia. It was a factor which had to be considered along with all other relevant factors. Further, the Tribunal had to have regard to Direction 53, cl 14 which expressly mandated that the Tribunal consider the Applicant’s immigration history and to have regard to “previous visa applications” including “if the applicant previously applied for an Australian […] permanent visa”.

36. The Tribunal stated (TD [149], CB 389):

    […] The Tribunal makes no adverse finding against Mr Raja because he applied for a Subclass 187 visa in February 2018, as was his right, but the circumstances of that application and the consistency of Mr Raja’s evidence are relevant matters for the Tribunal to consider.

37. Further, the Tribunal held at (TD [155]–[156], CB390) as follows:

    If Mr Raja had been applying for a Subclass 187 visa to work as a chef, or in hospitality, or a similar role then the Tribunal would have had less concerns about this evidence as Mr Raja would have been working in the field he has given evidence is his passion, that suits him and is the reason he needs to study in Australia until May 2019 after already having been in Australia for nearly eight years.

    Mr Raja’s actions are not consistent with his evidence to the Tribunal. The Tribunal finds that Mr Raja’s actions of applying for and being offered a position as a full time automotive mechanic causes the Tribunal to doubt the genuineness of his commitment to his most recent study and career plan to work in hospitality and to open his own restaurant in Pakistan. This causes the Tribunal to question the value of that study to his future and his genuineness as a temporary entrant to study in Australia.

38. There was no error in the Tribunal reasoning that the previous application for a permanent visa (even though withdrawn) was a part of the Applicant’s past conduct which could be considered in an assessment of his present intentions referable to the GTE Criterion at the date of decision. 

39. Ground 4 has not been made out.

    CONCLUSION

40. The application will be dismissed. I will make an order for costs in accordance with the relevant scale.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate:

Dated:       20 October 2023