Raval v Minister for Immigration
[2020] FCCA 418
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAVAL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 418 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued cl.573.223(1)(a) of the Migration Regulations 1994 (Cth) – whether the Tribunal had proper regard to Ministerial Direction No.53 made under s.499 of the Migration Act 1958 (Cth) – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 499 |
| Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 |
| First Applicant: | VIKASKUMAR AMRUTLAL RAVAL |
| Second Applicant: | ROMA VIKASKUMAR RAVAL |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 73 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 24 February 2020 |
| Date of Last Submission: | 24 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2020 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | In person |
| Legal Representative for the Respondents: | Mr L. Leerdam |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made pursuant to s.476 of the Migration Act 1958 (Cth) on 10 January 2017 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $6500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 73 of 2017
| VIKASKUMAR AMRUTLAL RAVAL |
First Applicant
| ROMA VIKASKUMAR RAVAL |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 10 January 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 31 October 2016 affirmed the decision of the Minister’s delegate to refuse the grant of Student (Temporary) (Class TU) visas (“the visa”) to Mr and Mrs Raval.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE 1”).
Background
On 3 April 2015 Mr and Mrs Raval applied for Student (Temporary) (Class TU) visas (CB 1 – CB 9). Mr Raval was the principal applicant. Mrs Raval applied as a member of Mr Raval’s family. They provided documentary evidence in support of the application (CB 1 – CB 27, CB 41 – CB 56).
By email sent on 5 August 2015 (CB 57) the delegate, amongst other things, put Mr and Mrs Raval on notice that based on the material they had provided, the delegate had: “…serious concerns about your true intentions in Australia” (CB 65.8). They were asked to provide a statement in response (CB 57 – CB 69). No response was received (CB 82.4).
The delegate refused the application on 16 December 2015 (CB 70 – CB 85). While there were a number of subclauses to the student visa class, the delegate found that the subclasses relevant to Mr and Mrs Raval’s circumstances was clause 573 (Higher Education Sector – see Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”)).
The grant of the visa required the delegate to be satisfied that amongst other matters, Mr Raval satisfied the requirements of cl.573.223 of Schedule 2 to the Regulations. (See further below).
In reaching her decision, the delegate had regard to Ministerial Direction No. 53 (“MD 53”) (see further below). The delegate refused the grant of the visas. The delegate was not satisfied that Mr Raval intended a genuine temporary stay in Australia (CB 83.8). As a consequence the delegate refused the grant of the visa to Mrs Raval (CB 84).
The Tribunal
Mr and Mrs Raval applied for review to the Tribunal on 4 January 2016 (CB 86 – CB 88). They were assisted by a registered migration agent (CB 87). They were invited to attend a hearing before the Tribunal scheduled for 6 October 2016 (CB 104 – CB 108).
The letter of invitation also enclosed a copy of Ministerial Direction No. 53 made pursuant to s.499 of the Act (CB 109 – CB 113), and invited Mr and Mrs Raval to provide a written statement addressing the issue of whether they were genuine temporary entrants with reference to MD 53 (CB 107.5).
The invitation was re-issued on 16 September 2016 (CB 128 – CB 131). Mr and Mrs Raval were asked to provide certain educational documents and were again referred to MD 53.
Mr and Mrs Raval responded through their representative on 27 and 28 October 2016 (CB 137 – CB 157). Mr Raval provided a written statement (CB 143 – CB 145).
Mr and Mrs Raval attended the hearing on 31 October 2016. Their representative also attended (CB 158 – CB 159). Despite opportunity to do so, no transcript of the Tribunal hearing has been provided by Mr and Mrs Raval to the Court.
The Tribunal identified the issue in the case as being whether Mr Raval (the principal applicant) met the requirements of cl.573.223(1)(a) of the Regulations. As set out above, Mr Raval applied for, relevantly, a subclass 573 visa. The criteria for the grant of that visa are set out at clause 573 of Schedule 2 to the Regulations.
In the current case the Tribunal identified the issue as being whether, in the circumstances presented, it could be satisfied that Mr Raval was a genuine applicant for entry and stay in Australia as a student ([20] at CB 239).
The Tribunal set out the terms of cl.573.223(1)(a) ([20] at CB 239):
“20. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) …”
It then set out (at [21] – [22], CB 239 to CB 240):
“21. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
• the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
• the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
22. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.”
The Tribunal found that Mr and Mrs Raval did not satisfy the relevant criteria ([23] at CB 240). The Tribunal’s reasons and findings in support of its conclusion are set out at [24] – [32] (CB 240 – CB 241) of its decision record.
The Tribunal found that Mr Raval had established his life in Australia and did not have strong incentives to return to India. This was based on his having first entered Australia in 2008, returned to India on one occasion, and in circumstances where his current plans (as at December 2016) were to extend his stay until 2017 ([24] at CB 240).
The Tribunal had regard to Mr Raval’s circumstances in India. These were that his child and extended family remained there and that his inherited wealth in India were incentives for him to return. However the Tribunal balanced this as against the “significant amount of time” Mr Raval had spent in Australia since 2008, and his stated intention to remain at least until 2017 ([25] at CB 240).
Further, the Tribunal noted Mr Raval’s evidence at the hearing that he left Australia only once since first arriving, and that he said his parents and child were able to visit him and stay for a period of “several months”. In all, this indicated a “limited incentive” to return to India and revealed a “desire to remain” in Australia ([26] at CB 240).
In considering the value of the proposed course of study to Mr Raval’s future, the Tribunal noted that Mr Raval had already: “…achieved the Tertiary education, having obtained a Bachelor of Science” in India, and completed five courses in Australia. In the circumstances the Tribunal found that (at [27] (CB 240):
“27. …further tertiary education will have limited impact on the applicant's future, as it is within the level he has already attained. The Tribunal has also considered that the applicant has previously been granted three student visas at the tertiary level, and has failed to complete any of the relevant courses.”
The Tribunal accepted Mr Raval’s evidence that Mrs Raval had suffered a miscarriage in 2009. However it found it difficult to accept that this would have prevented Mr Raval from completing the qualifications relevant to the class of student visa he held at that time ([28] at CB 240).
The Tribunal accepted, and said it took into account, Mr Raval’s evidence that he suffered chest pains in 2015, and this impacted on his ability to study. However, the Tribunal also took into account Mr Raval’s evidence that he did not require ongoing medical testing and had been advised to increase his cardiac exercise ([29] at CB 240).
The Tribunal also noted that Mr Raval’s evidence: “…was mixed in relation to the impact his chest pains had on his studies, as he indicated that it currently prevented him from working, when questioned by the Tribunal, said it would not prevent him from studying in future” ([29] at CB 240 – CB 241). The Tribunal found: “…having considered the applicant’s evidence overall, it finds he does not satisfy the genuine temporary entrant requirement” ([29] at CB 241).
In relation to Mr Raval the Tribunal found (at [30], CB 241):
“30. On the basis of the above, and having considered the applicant's circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).”
In relation to Mrs Raval the Tribunal found (at [32], CB 241):
“32. The secondary applicant does not satisfy cl.573.322.”
The Application to the Court
The sole ground of the application to the Court is in the following terms:
“Ground
The Tribunal misconstrued the Clause 573.223(1)(a) of the Migration Regulations.
Particulars
The Tribunal construed erroneously (and narrowly) as the applicant provided all the documents required for the genuine temporary resident demonstration including but not limited to financial capacity, health insurance coverage, genuine intention to study temporarily and English proficiency.
Also tribunal failed to take into account the compelling and compassionate circumstances surrounding his health and death of his child at six months gestation. Tribunal failed to take into account the following points since the applicant history of staying in Australia as a student for the past 8 years only to study courses in addition his circumstances in home country is reasonably stable due to his father's wealth as inherited properties valued at multi-million dollars and long service in government:
The nature of the breach;
Significance of the breach;
Whether breach deliberates;
Role of the Department;
At the time of the refusal if the Applicant could demonstrate exceptional circumstances;
Other circumstances such as illness of applicant and of close family member;
Intervening holiday periods;
Offer of re-enrolment;
Other issues raised”
[Errors in the Original.]
Before The Court
Despite opportunity given to Mr and Mrs Raval by orders, made by consent, by a Registrar of the Court on 27 April 2017 to file any evidence by way of affidavit, any amended application, and written submissions, they had not filed any such documents as at the time of the hearing before the Court.
At the final hearing Mr and Mrs Raval appeared in person. They were plainly competent in the English language. They had previously indicated that they did not need the services of an interpreter.
I explained to Mr and Mrs Raval that the Court had no power to grant them a visa. The issue for consideration before the Court was whether in making its decision the Tribunal made a “legal mistake”. Both indicated that they understood this. Notwithstanding this, they made the following submissions.
One, Mr Raval submitted that when he came to Australia he commenced his studies, but that a number of incidents occurred that caused him stress and which affected his capacity to study. However when these incidents passed he focused on his studies.
Two elements emerged from this submission. This mirrored submissions and evidence he put to the Tribunal. As Mr Raval subsequently confirmed before the Court, he had given this evidence and made his arguments to the Tribunal in relation to these matters, and also confirmed that the Tribunal had considered these matters. However, he submitted, the Tribunal was unreasonable in not accepting that this explained the lack of progress in his studies.
There is no doubt that legal reasonableness is a critical element of lawful decision making (See Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) at [26], [29], [63], [88], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [4], [53], Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713; (2018) 357 ALR 408 (“SZVFW”) at [4], [80], [89]). However, legal unreasonableness is not made out simply because an applicant is aggrieved with, or does not accept, the Tribunal’s analysis and findings.
In the current case, as set out above, the Tribunal did consider all of Mr Raval’s evidence and arguments as to his study history. While a different Tribunal member may have reasoned differently, legal error is not revealed in circumstances where the Tribunal gave cogent and intelligible reasons probative of the evidence before it to explain its subsequent findings on which its ultimate conclusion was based. No legal error is revealed in these circumstances.
Second, to the extent that Mr Raval referred to events after the date of the Tribunal’s decision, as the Minister correctly submitted, such matters cannot reveal legal error in the Tribunal’s decision given that this Court cannot substitute its own findings of fact for those of the Tribunal.
Two, Mr Raval submitted that the Tribunal was in error in relying on the fact that he had completed a Bachelor of Science degree in India in circumstances where he had commenced study in Australia because he wanted a career change. Although not entirely clear, it appears this complaint was directed to the Tribunal’s finding that further tertiary education would have limited impact on Mr Raval’s future. (See [27] at CB 240).
That Mr Raval had sought a change in career, as such, was never at issue before the Tribunal. He made no explicit claim in this regard before the Tribunal. It is clear on what was before the Tribunal that he had completed a Science degree in India, and that his studies in Australia were focused on accounting and management (see [6] at CB 238).
Rather, what the Tribunal reasoned, and found at [27] of its decision record, was focused on one of the factors for consideration as arising from MD 53. That is, the value of the course of study in Australia to Mr Raval’s future. In his written statement submitted to the Tribunal in response to its letter of 16 September 2016 (to which MD 53 was attached) Mr Raval made no mention of any career change. Nor was this raised before the delegate. While the delegate made reference to a “change in career” (first dot point at CB 83), this was the delegate’s view of the circumstances presented.
In the circumstances it was reasonably open for the Tribunal to reason (in the absence of any claim to the contrary put before it) that Mr Raval had already attained a tertiary level qualification, and that further tertiary education would have limited impact on his future.
Three, Mr Raval also took issue with what he said was the Tribunal’s finding that he had only left once since first arriving in Australia, and that this meant that he thereby indicated a desire to remain in Australia. This appeared to be directed to the Tribunal’s reasoning and findings at [26] (CB 240) of its decision record. Again this submission does not take into account the context in which the Tribunal was required to consider these circumstances.
As set out above, the key issue before the Tribunal was whether Mr Raval intended a genuine temporary stay in Australia for the purposes of study. As is made clear at [8] of MD 53 (see CB 134) the Tribunal was required to weigh those elements in the applicant’s circumstances that indicated that the application for the student visa was intended primarily for maintaining residence in Australia (see further below).
In that context it was reasonable for the Tribunal to consider, amongst a number of other elements, that Mr Raval, after first arriving in Australia for the purpose of study, had only left once over a number of years, and during which, for some time, did not complete his studies.
Four, Mrs Raval submitted that she had been away from India for a long time, her son remained in India (with her parents-in-law) and that they remained in Australia for their “son’s future”. With respect to Mrs Raval, it was difficult to see how this submission revealed jurisdictional error in the Tribunal’s decision. If anything, it appeared to be a request for this Court to engage in impermissible merits review. Further, it would appear to reinforce the Tribunal’s conclusion that their stay in Australia was not genuinely temporary for the purpose of Mr Raval completing his study.
In their entirety Mr and Mrs Raval’s submissions to the Court were either focused on events after the Tribunal’s decision, in which case those arguments did not reveal jurisdictional error in the Tribunal’s decision, or sought to express grievance with the Tribunal’s reasoning. That is, they sought impermissible merits review, and therefore did not indicate jurisdictional error in the Tribunal’s decision.
Consideration: The Ground of the Application
The sole ground of the application to the Court is a bare assertion that the Tribunal misconstrued cl.573.223(1)(a) of the Regulations. The explanation for this appears to be, in the particulars, as follows.
One, that Mr Raval provided all relevant documents required, yet the Tribunal still did not find that he satisfied the requirements for the grant of the visa.
The evidence before the Court reveals that the Tribunal understood the requirements of cl.573.223(1)(a) and considered not only Mr Raval’s documentary evidence, but his oral evidence as well, in making findings in relation to each of the matters set out at cl.573.223(1)(a) ([20] at CB 239 and [22] – [28] at CB 240).
That is, it considered Mr Raval’s circumstances, his migration history, and other relevant matters arising from the circumstances presented (cl.573.223(1)(a)(i), (ii) and (iv)). Clause 573.223(1)(a)(iii) was not relevant to Mr Raval’s circumstances, as he was not at the relevant time a minor.
The Tribunal made findings in relation to each of these matters which were reasonably open to it on what was before it, and for which it gave cogent and intelligible reasons probative of that material.
In essence, this complaint is no more than a challenge to those findings arising from Mr Raval’s disagreement with what the Tribunal found. This particular does not reveal jurisdictional error in the Tribunal’s decision.
Two, the particulars assert that the Tribunal failed to take into account the compelling and compassionate circumstances surrounding Mrs Raval’s miscarriage, and the impact this had on Mr Raval including, relevantly, his capacity to study.
To the extent that the particular refers to “compelling and compassionate” circumstances, cl.573.223(1)(a) does not make express reference to this phrase as is the case, for example, with the consideration in granting an onshore Partner visa.
In any event, to the extent that Mrs Raval’s circumstances, and the impact of these on Mr Raval, may be said to fall within (i) or (iv) of cl.573.223(1)(a), then any plain reading of the Tribunal’s decision record reveals that the Tribunal did consider Mr Raval’s claims in this regard (see [5] at CB 237 and [28] at CB 240). In the circumstances this aspect of the particulars is no more than an expression of grievance with the Tribunal’s relevant analysis and findings. Again it seeks impermissible merits review.
Three, the particulars also assert that the Tribunal failed to take into account Mr Raval’s study history and his father’s wealth in India.
The Tribunal’s decision record reveals that the Tribunal identified these matters at [5] (CB 237) of its decision record, and plainly took them into account, in the sense of considering them, at [25] – [27] (CB 240).
It is clear that Mr Raval’s complaint here misunderstands the difference between “not [taking] into account”, and considering a claim or evidence, and still finding that the claim or evidence does not satisfy the relevant criterion for the grant of the visa. No legal error is revealed in this regard in the current case.
Four, the particulars contain a long list of phrases whose relevance to the ground is not explained.
Nor was Mr Raval able to satisfactorily explain how this list assists his case, beyond being some shorthand way of asserting that he should have been granted the visa. In the circumstances, no legal error is revealed here.
In all, the ground and the particulars do not reveal jurisdictional error in the Tribunal’s decision.
Minister Direction No 53
Although not raised by Mr and Mrs Raval, in his written submissions, the Minister, fairly, alerted the Court to an issue for consideration in the current case. That is, that in considering whether Mr Raval satisfied cl.573.223(1)(a) the Tribunal had proper regard to MD 53.
A copy of MD 53 is in evidence before the Court (CB 132 – CB 136). As set out above, the Tribunal sent a copy of this to Mr and Mrs Raval, and gave them the opportunity to comment on it as it related to their application.
The Tribunal understood that in considering cl.573.223(1)(a) it was compelled to have regard to MD 53 (see [21] at CB 239 – CB 240). Further, that as MD 53 was issued pursuant to s.499(1) of the Act, the Tribunal was required to comply with MD 53 in this case (CB 132.5).
In his submissions to the Court, the Minister drew attention to two cases of this Court which have taken different approaches to the issue of what the Tribunal is specifically required to consider in light of MD 53, and the obligation to make findings, as expressed in the decision record as a result of MD 53.
In Singh v Minister for Immigration & Anor [2018] FCCA 3423 (“Singh”) the Court held, relevantly, that the Tribunal is required to consider, and make findings about, each and every factor specified in MD 53, either expressly or impliedly.
In a later case of this Court, Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (“Kaur”), the Court held that (at [51]):
“51. The use of guidelines in the exercise of statutory discretionary powers is not uncommon.[9] The trend of reasoning in the authorities[10] respecting Direction 53 and to which my attention was drawn confirms that the use of those guidelines requires that they be addressed insofar as they are relevant to the particular facts of the instant application. By extension, those guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.”
[Footnotes Omitted.]
It is not necessary to consider the question of preference as between Singh and Kaur, or the authorities on which they respectfully rely. That is because on 24 February 2020, the Full Court (Logan, Derrington and Thawley JJ) handed down judgment in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (“Kumar”).
This case provides direction and binding authority on this Court, on the effect of MD 53 on the consideration required by cl.572.223(1)(a) of Schedule 2 to the Regulations, which is in similar terms to cl.573.223(1)(a), which is relevant to this case.
The hearing in this matter commenced on the morning of 24 February 2020. At the conclusion of the hearing I advised the parties that I would hand down judgment, in writing, on 27 February 2020. The hearing of this case occurred on the same day that the Full Court handed down its judgment. It would have been of assistance to this Court if the Minister’s solicitor, whose firm also represented the Minister in Kumar, had alerted the Court of the Full Court’s intention to hand down judgment on the same day.
I did consider whether to give the parties the opportunity to make further submissions in light of Kumar. However given what the Full Court stated in that case, the circumstances of this case, and that despite being on notice of the issue as a result of the Minister’s written submissions, Mr and Mrs Raval made no submission in reply, I considered that no prejudice or unfairness would result to any of the parties in proceeding to judgment.
In any event, and further, the Minister’s submissions in this case “mirrored” the Full Court’s judgment, although that judgment, with respect, contained a far greater, and helpful, explanation.
The following from the joint judgment (Derrington and Thawley JJ), with whom Logan J agreed (at [2]), provides direction to this Court on the operation and application of MD 53 in cases of this type (at [96] and [97] of Kumar):
“96. Direction 53 requires that, in reaching the state of satisfaction in cl 572.223(1)(a), the decision maker “have regard to” the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial.
97. That is not to deny that a failure to make a finding might constitute or evidence jurisdictional error in particular circumstances. The visa applicant would need to establish that: (a) it was necessary to make the finding in order to have exercised the jurisdiction or exercised it in the manner contemplated by the statutory scheme; and (b) the failure to make the finding was material in the sense of depriving the applicant of the possibility of a successful outcome: SZMTA.”
Further, Logan J said at [4] of Kumar:
“4. Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.”
As is made clear, MD 53 required the Tribunal to have regard to the factors set out at Part 2 of MD 53 (when read in context of Part 1) in considering and deciding on the state of satisfaction relevant to cl.573.223(1)(a). The terms of cl.573.223(1)(a) are set out above (see at [15]).
Part 1 of MD 53 makes clear (at CB 133.3):
“The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter”
Part 2 of MD 53 sets out the factors relevant to that consideration (see CB 134 – CB 136):
1. “9. In considering the applicant's circumstances in their home country, decision makers must have regard to the following factors:
a. Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives as established by the applicant.
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.
d. Military service commitments that would present as a significant incentive for the applicant not to return to their home country.
e. Political and civil unrest in the applicant's home country. This includes situations of a nature that may induce the applicant to apply for a Student visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant's home country and the influence these may have on an applicant's motivations for applying for a Student visa.”
2. “11. In considering the applicant's potential circumstances in Australia, decision makers must have regard to the following factors:
a. The applicant's ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties.
b. Evidence that the Student visa program is being used to circumvent the intentions of the migration program.
c. Whether the Student visa is being used to maintain ongoing residence.
d. Whether the primary and secondary applicant(s) have entered into a relationship of concern for Student visa purposes. Where it has been determined that an applicant and dependant have contrived their relationship for Student visa purposes, the decision maker can find that both applicants do not satisfy the genuine temporary entrant criterion.
e. The applicant's knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.”
3. “12. Decision makers must have regard to the following factors in considering the value of the course to the applicant's future:
a.Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.
b.Relevance of the course to the student's past or proposed future employment either in their home country or a third country.
c.Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.”
4. “14. In considering the applicant's immigration history, decision makers must have regard to the following factors:
a. Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which they were refused.
ii.if the applicant has previously applied for visas to other countries, whether they were refused a visa and the circumstances that led to visa refusal.
b. Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control.
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances.
iii.the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification.
iv.if the applicant has travelled to countries other than Australia, whether they complied with the immigration laws of that country and the circumstances around any non-compliance.”
5. “15. If the primary or secondary applicant for a subclass 570, 571, 572, 573, 574, 575 or 576 visa is a minor, decision makers must have regard to the intentions of a parent, legal guardian or spouse of the applicant.”
In the current case Mr and Mrs Raval had notice, as a result of the delegate’s decision, that the question of their genuine intention to stay in Australia temporarily, for the purposes of Mr Raval’s study, was at issue.
By its letter of 16 September 2016 (sent by email) the Tribunal invited Mr and Mrs Raval to a hearing. The letter also specifically put them on notice, again, of the question as to whether they were genuine temporary entrants, and specifically invited written submissions, with reference to MD 53, a copy of which was attached to the Tribunal’s email.
On 26 October 2016 Mr Raval provided a written statement to the Tribunal in response to its correspondence (CB 143 – CB 145, and see [5] at CB 237 and [6] at CB 238), and gave evidence at the hearing before the Tribunal. (See [7] – [18] at CB 238 to CB 239).
As set out above, the Tribunal sent a copy of MD 53 to Mr and Mrs Raval with an explanation as to its relevance to the disposition of their application. There is nothing in that explanation that is inconsistent with what is set out in MD 53, or contrary to the understanding of MD 53, as explained in Kumar. Nor does the Tribunal’s decision record reveal some understanding of MD 53 contrary to what is explained in Kumar (see Kumar at [74] – [87]).
As with the situation in Kumar, the Tribunal in the current case did not “set out” each of the factors [in MD 53] and deal with them “seriatim” (with respectful reference to Kumar at [106]).
In the current case the Tribunal assessed and weighed Mr Raval’s circumstances as a whole as required by [1] of MD 53 (CB 133.10 – CB 134.1). Given the circumstances set out above, and in particular that the Tribunal provided a copy of MD 53 to Mr and Mrs Raval and sought specific submissions from them, and given what is set out at [21] – [23] (CB 239 – CB 240) of its decision record, it is reasonable to infer that the Tribunal considered the factors in MD 53.
Further, that in light of the claims and evidence before it, it considered which of the factors in MD 53 were material to Mr Raval’s circumstances, as he himself had variously put those circumstances before the delegate and the Tribunal, and which were not.
In the current case the following emerges in relation to each of the factors at [9], [11], [12] and [14] of MD 53. (Noting that as neither Mr or Mrs Raval were minors, [15] had no relevance.)
In his submissions and evidence to the Tribunal, Mr Raval made no reference whatsoever to whether he could not undertake study in India ([9]a. of MD 53), military service ([9]d. of MD 53), or of any political and civil unrest in that country relevant to his circumstances ([9]e. of MD 53).
Given what is set out above, no legal error is revealed in these circumstances where no express reference is made to these matters in the Tribunal’s decision record. In the circumstances, it is reasonable to assume that given that the Tribunal understood the requirements of MD 53, these matters were considered, but not mentioned in the decision record, because they were not of sufficient importance or materiality to require specific mention in its decision record. (For the requirements of the contents of the decision record, see relevantly Kumar at [87] – [95].)
Mr Raval did make submissions and give evidence about his personal ties to India (with reference to [9]b. of MD 53). The Tribunal considered this factor, and in particular that his son and extended family remained in India ([25] at CB 240).
The Tribunal’s consideration included whether this would provide a significant incentive for him to return. However, the Tribunal gave reasons, with reference to all the relevant circumstances, as to why this would not be the case ([25] – [26] at CB 240). No legal error is revealed here.
Mr Raval also made submissions and gave evidence as to his economic circumstances ([9]c. of MD 53). The Tribunal noted that he had claimed that he had: “…inherited wealth in India” and claimed that this was a: “…strong incentive to return” ([25] at CB 240). The Tribunal therefore considered this factor, but in the totality of Mr Raval’s circumstances, was not persuaded that it outweighed other factors.
The Tribunal did have regard to Mr Raval’s submissions and evidence regarding his potential circumstances in Australia ([11] of MD 53). The Tribunal found that Mr Raval’s relevant history was such as to indicate that he had established his life in Australia, and did not have strong incentives to return to India. The Tribunal therefore considered [11]a. of MD 53.
There is no specific reference in the decision record to [11]b. or c. of MD 53. However, apart from Mr Raval’s own evidence (which the Tribunal expressly considered), there was no other evidence before the Tribunal that went to the factor of whether the student visa program was being used to circumvent the intentions of the migration program ([11]b.).
As to [11]c. of MD 53, it is reasonable to infer that the Tribunal did consider this, given its various references to the length of time Mr and Mrs Raval had been in Australia, and Mr Raval’s stated intention to extend his stay in Australia ([25] at CB 240), which in all the circumstances indicated there was an intention to remain in Australia.
The Tribunal did not make express reference to [11]d. of MD 53. That is, whether Mr and Mrs Raval entered into a contrived relationship for visa purposes. This is because, plainly, there was no suggestion that that was the case. This also was not such as to warrant specific mention in the decision record.
In relation to [11]e. the Tribunal did consider Mr Raval’s previous study and qualifications (see [27] at CB 240). As to the other elements in this factor, the lack of any express reference in the decision record, in context, was because those elements were not relevant to the Tribunal’s consideration, particularly as Mr Raval made no submissions, nor did he give any evidence about his knowledge of living in Australia, and the level of research, if any, that he had undertaken about his proposed courses of study.
The Tribunal did consider the value of the proposed course of study to Mr Raval’s future ([12] of MD 53) ([27] at CB 240). In its decision record the Tribunal set out the elements arising from the evidence and submissions before it ([12]a.).
The Tribunal also considered the relevance of the proposed course for Mr Raval’s future when he returned to India ([12]b.) ([27] at CB 240).
The question of remuneration ([11]c. of MD 53) was not raised by Mr Raval. In any event, Mr Raval’s evidence was that given his family’s wealth in India, that was a significant element in the incentive for him to return.
With reference to [14] of MD 53, the Tribunal made express reference in its decision record to those matters raised in Mr Raval’s submissions and evidence. For the remainder, they were not relevant to the circumstances presented. For example, there was no issue that Mr Raval had previously applied for a visa which was yet to be determined ([14]a.i.), or had been refused a visa to another country ([14]a.ii.).
Nor was the question of previous travel to Australia ([14]b.i.), or whether they had travelled to other countries ([14]b.iv.), material to Mr Raval’s (or Mrs Raval’s) circumstances. There was no evidence that Mr or Mrs Raval were the subject of any cancellation of a visa ([14]b.ii.). The Tribunal did have specific regard, and made reference in its decision record, to the time Mr and Mrs Raval had spent in Australia ([14]b.iii.).
As set out above, in its decision record the Tribunal revealed that it had considered Mr and Mrs Raval’s evidence and submissions about Mrs Raval’s miscarriage, the effect of this on Mr Raval, and Mr Raval’s health problems (see [22] – [24] and [51] – [53] above).
These matters do not immediately, or readily, appear to fall within any of the factors set out at MD 53 [9], [11], [12], and [14]. However, the factors set out there are not an exhaustive “checklist” of the factors to be considered in matters of this type. These matters were relevant to the consideration under cl.573.223(1)(a)(i) and (iv). No legal error is revealed here.
In all, I agree with the Minister that the Tribunal considered all factors relevant to MD 53, and made express reference in its decision record to those factors which were relevant and material to the circumstances presented to it. No jurisdictional error is revealed in these circumstances.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. It is appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 27 February 2020
0
6
3