RAZA v Minister for Immigration and Anor
[2017] FCCA 1272
•30 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAZA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1272 |
| Catchwords: MIGRATION – Application for Student (Temporary) (Class TU) (subclass 573) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in law by finding lifestyle decisions were relevant to the bona fides of the applicant – whether the Tribunal erred in failing to consider country information – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.65, 116, 368(1), 499, Direction No. 53 Migration Regulations 1994 (Cth), cl.573.223 of Sch.2 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 |
| Applicant: | SHAHID RAZA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2045 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 7 June 2017 |
| Date of Last Submission: | 7 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R. Young |
| Solicitors for the Applicant: | Newman & Associates |
| Solicitors for the Respondents: | Ms N Blake, Clayton Utz |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 12 July 2016.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 16 October 2015 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2045 of 2016
| SHAHID RAZA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan who applied for a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 29 July 2015. The criteria for the grant of that visa were contained in cl.573 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations). Clause 573.223(1) of the Regulations required that the Minister be satisfied that the applicant was a genuine applicant for entry and stay as a student.
The Minister has power under s.499 of the Migration Act1958 (Cth) (Act) to give directions to persons making decisions under the Act. On 3 November 2011, the Minister made a direction for the purpose of considering, amongst other things, the criterion in cl.573.223(1)(a): Direction No 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (Direction). It will be necessary to return to the content of the Direction later in these reasons.
On 16 October 2015, a delegate of the Minister made a decision to refuse to grant the applicant a student visa. The applicant applied to the Tribunal for review of that decision. The Tribunal affirmed the delegate’s decision on 12 July 2016. The Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student and so found that he did not satisfy the criterion in cl.573.223(1) of the Regulations.
The applicant now seeks judicial review of the Tribunal’s decision. He argues that the Tribunal took into account irrelevant considerations and failed to comply with the Direction. For the reasons that follow, the second of these contentions is made out and the application will be allowed.
Relevant legislative provisions
On considering a valid application for a visa, the Minister must determine whether he or she is satisfied that the criteria for the grant of that visa are satisfied: s.65 of the Act. As I have already noted, the criterion relevant to the issues in these proceedings was found in cl.573.223 in Sch.2 of the Regulations. That clause provided:
(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)the applicant meets the requirements of subclause (1A) or (2).
(1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student[1] who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:
[1] This part of the clause is how it is shown in the decision of the delegate and appears to have changed by the time of the Tribunal’s decision; however, neither party drew any attention to the change and it does not appear to have any significance to the issues in the proceedings.
(a)the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2) If subclause (1A) does not apply:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
While the overarching concern of this criterion is the determination of whether the visa applicant is a “genuine applicant for entry and stay as a student”, that determination must be made by the determination of two more specific questions: first, whether the applicant intends genuinely to stay in Australia temporarily (sub-cl.(1)(a)); and secondly, in addition, whether the applicant satisfies the requirements in sub-cll.(1A) or (2). The requirements in sub-cll.(1A)(b) and (2)(b) are the same as the overarching concern of the criterion, namely whether the applicant is a “genuine applicant for entry and stay as a student”. However, and by contrast, the requirement in sub-cl.(1)(a) refers only to the intention to stay temporarily in Australia rather than the genuineness of the applicant as a student. This makes clear that there are two separate concerns in the criterion in cl.573.223 of the Regulations: the intention to stay temporarily and the intention to stay as a student.
The first of these concerns must be addressed by reference to the four sub-paragraphs in sub-cl.573.223(1)(a) namely, the applicant’s circumstances, the applicant’s immigration history, the intentions of a parent, legal guardian or spouse (if the applicant is a minor) and any other relevant matter.
The Direction is directed towards a decision maker’s consideration of sub-cl.573.223(1)(a). It applies equally to delegates exercising the power under s.65 of the Act and the Tribunal in exercising its power to review the delegate’s decision.
The Direction is divided into two parts: Pt.1 - Preliminary and Pt.2 - Directions. In cl.1, Pt.2 of the Direction, decision makers are told that they:
...should not use the factors specified in this Direction as a checklist. Rather, they 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.
Clause 2 provides:
Decision makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).
Part 2 is then divided into sections addressing each of the four sub-paragraphs in sub-cl.573.223(1)(a). The first section, “The Applicant’s Circumstances”, includes a sub-heading “The applicant’s circumstances in their home country” and includes cl.9 which provides:
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.
…
(Emphasis added)
The Tribunal was obliged to comply with any relevant direction made under s.499 of the Act and a failure to do so constitutes jurisdictional error: see Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; [2015] HCA 15 at [19] (Uelese).
Factual background
The applicant was first granted a Student (Class TU) (subclass 573) visa on 2 May 2013. That visa was to enable him to study a Diploma of Business at the University of Canberra from 24 June 2013 until 24 January 2014 and a Bachelor of Business Administration at the University of Canberra from 10 February 2014 until 31 December 2015.
The applicant left the University of Canberra on 2 October 2013 and transferred to a course in hospitality (commercial cookery) at another education provider, commencing on 25 November 2013. However, the applicant discontinued that course on 28 January 2014. The applicant completed an Advance Diploma of Business on 18 August 2014 and then enrolled in a Bachelor of Business. However, it appears that he did not commence studies in that course.
On 13 May 2015, the applicant was sent a Notice of intention to consider cancellation of his visa under s.116 of the Act. The basis of the notice was that the applicant was no longer enrolled in a Bachelor’s degree, or Master’s degree, provided by an education provider as required for the subclass 573 visa.
The applicant’s migration agent responded to the Notice saying that the applicant had applied to the Kent Institute of Business & Technology (Kent Institute) and was enrolled in a Bachelor of Accounting from 13 July 2015 until 14 July 2017.
On 29 July 2015, the applicant applied for a Student (Class TU) (subclass 573) visa on the basis of his enrolment in Kent Institute. On 5 August 2015, an officer of the Department of Immigration wrote to the applicant outlining his previous visa history. This letter also referred to the applicant’s enrolment in the Kent Institute after the receipt of the Notice of intention to consider cancellation of his student visa. The officer suggested that the applicant had done so for the purpose of using the student visa program to maintain residence in Australia. The applicant was invited to respond to that letter.
The applicant responded by email on 1 September 2015[2]. In his response the applicant relevantly stated[3] (without alteration):
[2] CB 38.
[3] CB 40.
…
I completed part of ACCA in Pakistan and Advanced Diploma of Business in AITE. Both of the courses are relevant to my current course Bachelor of accounting and based on my prior study I received 10 exemptions from KENT which saved my 1.3 years duration of Bachelor qualification. Now I have to do 14 subjects instead of 24 subjects. Though my CoEs were issued for Certificate III in Commercial Cookery and Diploma of Hospitality but 1 month after studying the course (as there was holiday period for 6 weeks in the college from December to January) I realized it’s not my field. I lost my interest and changed my course to Advanced Diploma of Business.
…
In Pakistan there is a trend to give the priority to the candidates who have received qualification from overseas for job. Currently, accounting job is under supplied and demand for candidates graduated from Australia, USA and UK are soaring up. My Bachelor of Accounting qualification is accredited by ICA and CPA Australia. The qualification will help me to pursue my career to be a CPA while I will be working in Pakistan in my chosen industry.
“A qualified accountant can expect a starting salary of up to Rs150,000 a month in Karachi. But even in the northern region, the first salary a fresh accountant with CA/CPA draws is never less than Rs100,000,” said ICAP President Rashid Rahman Mir while talking to the Express Tribune.
The applicant’s response also included a number of medical certificates indicating that the applicant was unfit for normal study/work for periods between 6 September and 10 October 2013.
By letter dated 15 September 2015, the applicant was requested to provide further information including an explanation as to why he continued to live in the Australian Capital Territory (ACT) but studied 300 kilometres away in Sydney. The applicant replied by email dated 21 September 2015 that he enjoyed the atmosphere in Canberra and travelled regularly from Canberra to Sydney by bus, his own car and a friend’s car in order to attend classes. The applicant said that when he did travel to Sydney, he usually stayed at his friend’s house or in backpackers’ accommodation. He noted that his attendance was above 80% and included a record of his booking and travel history with the bus company and receipts from a hotel in Sydney supporting his claims.
On 16 October 2015, a delegate of the Minister decided to refuse to grant the applicant a visa and the applicant applied to the Tribunal for review of that decision.
On 7 March 2016, the Tribunal wrote to the applicant to invite him to attend a hearing to be conducted on 19 April 2016. In that invitation the Tribunal also requested that the applicant provide a number of documents including:
a)current certificate of enrolment;
b)documents showing that the applicant was currently enrolled in a course;
c)documents showing past studies undertaken by the applicant; and
d)an explanation for any gaps in his enrolment(s).
The letter indicated that the Tribunal would “assess whether (the applicant) intend(s) genuinely to stay in Australia temporarily as required by clause 573.223(1)(a) of the Migration Regulations” and attached a copy of the Direction.
The applicant responded to that invitation by an undated letter given by hand to the Tribunal. In the letter, the applicant explained that he had completed part of the Associate of Chartered Certified Accountants in Pakistan and had accordingly received 10 exemptions from his Bachelor of accounting at Kent Institute. The applicant repeated his previous statement that if he completed his degree he would be eligible for CA/CPA qualification, and thus, able to earn more than $5,000 a month. He also stated that while he was living in Canberra he had no issues travelling and attending classes in Sydney.
The applicant attended a hearing on 19 April 2016. The following day he sent a further letter to the Tribunal stating that he was going to complete 15 out of 24 units in the current semester, and that there would only be nine units left to complete his bachelor degree. The letter also explained that he could not pass 2 units due to his medical condition but was going to re-sit the exam in those units. The applicant enclosed a medical certificate to the effect that he should not continue his study until he recovered; however, he stated that he was doing the current semester so that he could complete his course as soon as possible and go back to his country. Enclosed with the letter were a number of documents including the following:
a)a letter dated 20 April 2016 from Kent Institute about the applicant’s progress in the Bachelor of Business course;
b)a letter dated 20 April 2016 from Kent Institute stating that the applicant was approved to “do a reduced load of study this trimester on medical grounds, his classes are on Wednesdays only”;
c)a medical certificate dated 24 February 2016 saying that the applicant would be unfit for work and study from 24 February 2016 to 25 February 2016; and
d)a medical certificate dated 26 February 2016 stating that the applicant “has severe anxiety which is impairing his physical and mental health” and that he would be unfit for study from 15 March 2016 to 31 May 2016.
On 12 July 2016, the Tribunal made its decision to affirm the delegate’s decision.
The Tribunal’s decision was neither lengthy nor lucid. It is necessary to set out the Tribunal’s consideration of the issues and evidence in full:
…
6.Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.
7.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) …
8.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.
9.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.
10.The applicant confirmed with the Tribunal that his plans were originally to study in the ACT and that he had originally enrolled in a bachelor of business.
11.The Tribunal raised its concerns, consistent with the PRISMS record, that he had only completed some six months studying since arriving in Australia in 2013. The applicant agreed but that he was currently studying a course.
12.The Tribunal continued that the course in which he enrolled in 2013 (paragraph 10 above) was only a six month diploma of business but that he had cancelled this course and, in contravention of his visa condition 8516, he enrolled in a lower-level certificate hospitality course-which he also cancelled. The Tribunal indicated that an inference could be drawn that he deliberately chose this latter course because it was at a lower level and cheaper than the diploma course. The Tribunal further indicated that such a change to a lower level course under such circumstances was also in breach of his visa conditions. The applicant did not agree that he enrolled in the course because it was a lower-level course and cheaper and replied that he simply wished to complete a proper course but made no comment in regard to the condition breaches.
13.The Tribunal raised with the applicant the fact that it could be inferred that he only enrolled in his present course of bachelor of accounting on 12/07/15 because of his current VA which he lodged on 29/0716, but he replied that this was not so as he wished to obtain an accounting qualification.
14.Earlier, the Tribunal reminded the applicant that he was sent a letter on 13/05/15 from the department giving notice that his visa was to be cancelled because he was not with a registered educational provider. It continued that another reason why he only enrolled in this present course, a bachelor of accounting, was because he needed to comply with his visa conditions and it would also assist his current VA but he said that was not the case.
15.The Tribunal raised the issue of how practical it was the he lived and worked in the ACT but was a student in a Sydney-based educational provider institution and that practically speaking this was untenable in the long term. The applicant replied it was working out for him.
16.The Tribunal directed that a transcript be provided of the applicant’s current education provider to include identification of the course, the subjects and their results and that it was to be submitted to the Tribunal post-hearing. The documents were duly submitted to the Tribunal together with a medical certificate that the applicant was to have a reduced study load in the completion of the current course. The Tribunal continued that out of the seventeen courses he completed in the present course he only received one pass and a credit, the rest being all exempt subjects, one fail and a withdrawn. The medical certificate was not relevant as it related to the future completion of the course and not the applicant’s past record. The Tribunal does not regard such transcript as reflective of continue studies which is another condition of the applicant’s visa and he replied that he was entitled to exemptions.
17.The Tribunal raised the issue of the seven cancellations because of non-commencement of course and to explain the some two years which, cumulatively, indicated that he had undertaken any study at all, but he only replied that he was currently enrolled in a course.
18.The applicant provided no insight or answer into as to he travels from the ACT to Sydney to undertake his current course.
19.The Tribunal asked why he did not relocate to Sydney as this would be a practical solution to his current problem and his answer was because he was established as living and working in the ACT. The Tribunal asked if he found this to be difficult and he stated that he worked his way around it.
20.The Tribunal finds that the applicant is not a genuine temporary student entrant. The Tribunal further finds that he has given no plausible reason why in the three years he has resided in Australia that he has only completed some six months of study – with the exception of the time taken to complete the two completed subjects in his present course.
21.The Tribunal finds that the applicant is more concerned with his living and working arrangements in the ACT and only becomes active in studying when he, inter alia, is either given notice that his visa might be cancelled or he is required to renew or apply for another.
22.The documents submitted regarding the applicant’s current course clearly indicates that out of the seventeen subjects in which he was enrolled only two subjects were actively undertaken, one achieving a pass level and the other a credit-the majority of the other subjects being exempt. It is no wonder he does not find any difficulty in attending the course in Sydney as most subjects were exempt and he never had to travel to Sydney to undertake these at any time. This is not illustrative of a genuine temporary student but someone who is more interested in lifestyle/work engagements rather than studying.
23.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).
…
(Errors in original)
Consideration
While there are three grounds in the amended application, Counsel for the applicant accepted that the first ground was no more than a background or lead into the other two grounds. For that reason, there is no need to consider the first ground in the amended application.
The second ground in the amended application is:
The applicant says that the tribunal erred in law and in its jurisdiction by finding matters such as life-style and affordability - which were clearly irrelevant - to be relevant in the assessment of the applicant’s bona fides. Further, the tribunal erred when it brought into the matrix for consideration his work without adducing evidence as to the actual work about which exception was taken.
The second sentence in this ground appears to suggest that the Tribunal is under an obligation to “adduce evidence”. Counsel for the applicant submitted that that was not what was meant by the ground, and that it should be understood to mean that the Tribunal ought to have obtained further evidence in the circumstances of the case. However, that ground was not seriously pursued and, as the proceedings are to be determined on another basis, it is unnecessary to consider that aspect of the second ground.
As explained in Counsel’s oral and written submissions, the remainder of the second ground is, in essence, as follows. The Tribunal only considered the first aspect of the criterion in cl.573.223(1) namely, the requirement that the Minister be satisfied that there was a genuine intention to stay temporarily. However, a number of the matters considered by the Tribunal had no rational bearing upon that requirement. Those matters included the fact that the applicant lived in Canberra.
The Minister submitted that the fact that the applicant lived in Canberra was a matter that could be taken into account by the Tribunal because of the claims made by the applicant. In particular, the Minister argued that, because the applicant claimed that he was genuinely studying, a matter that went to that issue could also be relevant to the Tribunal’s satisfaction of the stated genuineness of the applicant’s intention to only remain temporarily in Australia.
While I accept that the Minister’s argument has some force, I do not accept that, in this case that is the way in which the Tribunal reasoned. Rather, it effectively misunderstood the requirement in sub-cl.573.223(1)(a) to include the genuineness of the applicant’s stay as a student.
The essence of the Tribunal’s reasons is found in [20] to [22] of its decision. In the first of these paragraphs the Tribunal refers only to the completion of six months of study over the applicant’s three year stay in Australia. At [21], the Tribunal finds that the applicant was more concerned with his living and working arrangements in the ACT and only refers to the time at which the applicant became active in studying, namely, when he was given notice that his visa might be cancelled or when he was required to renew or apply for another visa. At [22], the Tribunal again refers to the fact that the applicant has to travel to Sydney to undertake study. That paragraph concludes:
…
This is not illustrative of a genuine temporary student but someone who is more interested in lifestyle/work engagements rather than studying.
There is no reference by the Tribunal to, or consideration of any matters put forward by the applicant concerning the value of his study in his home country or, indeed, the reason the applicant was able to complete a Bachelor’s degree with minimal attendance. Rather, the Tribunal gave considerable weight to where the applicant lived. That consideration has no logical bearing on whether or not the applicant intended to remain only temporarily in Australia. Indeed, it cannot, in my view, logically support even the conclusion that the applicant was not a genuine student in circumstances where the applicant was in fact attending at least 80% of his classes. For that reason, I conclude that the Tribunal fell into jurisdictional error; whether that error be described as irrationality or a misunderstanding of the test to be applied.
The third ground in the amended application is that the Tribunal erred when it “ignored mandatory information as specified” in the Direction, namely the applicant’s circumstances in his home country.
The applicant relies upon the fact that the Tribunal does not mention the circumstances in his home country anywhere in its reasons. In reply, the Minister argued that the Tribunal did take into account those circumstances because:
a)it referred to the requirement in the Direction to have regard to the applicant’s circumstances in his home country[4]; and
b)at [23] of its reasons, the Tribunal stated that it had considered “the applicant’s circumstances”.
[4] Tribunal’s decision at [8].
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 the Full Court of the Federal Court said, at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
The reasons of the Tribunal in this case are far from comprehensive. Indeed, in my view, apart from the paragraphs which appear to be taken from a template ([6] to [9]), the reasons are cursory and poorly drafted. On the assumption that they comply with the Tribunal’s obligation under s.368(1) of the Act, they do not reflect well on the Tribunal’s efforts to comply with its obligation to review the decision of the delegate. Leaving aside the quality of the reasons, there can be no dispute that the applicant’s circumstances in his home country are not referred to anywhere in the Tribunal’s decision.
I do not accept the Minister’s submission that the reference in the Tribunal’s decision at [16] to the applicant’s claim that he was “entitled to exemptions” supports any inference that the Tribunal had in mind, or considered the applicant’s claims concerning either the reason for those exemptions, or the value of an Australian degree to his future earning capacity in Pakistan. The reference to exemptions in that paragraph is made in the context of a summary of what occurred at the hearing conducted by the Tribunal, rather than, in an analysis or summary of any of the other material before the Tribunal.
I also reject the Minister’s submission that an inference may be drawn from [8] and [23] of the Tribunal’s reasons that the applicant’s circumstances in his home country were considered. Given the cursory nature of the Tribunal’s reasons, I would not infer any consideration from a bare recitation by the Tribunal of the matters in those paragraphs. The first paragraph is no more than a template summary of the Direction and the second paragraph no more than a high level reference to matters that the Tribunal ought to have considered.
I conclude that the Tribunal did not have regard to the circumstances in the applicant’s home country. Paragraph 9 of the Direction required the Tribunal to consider those circumstances, as did the Tribunal’s overarching obligation to review the delegate’s decision. Its failure to do so constituted jurisdictional error.
There was some suggestion in the Minister’s submission that it was not compulsory for the Tribunal to consider all of the matters in the Direction because:
a)cl.1 of the Direction stated that factors were not a checklist but a guide; and
b)whether or not the matter was relevant was for the Tribunal to decide.
Both suggestions are wrong. I accept the applicant’s submission that the reference to “checklist” in cl.1 of the Direction only operates to ensure that decision makers do not make decisions simply by referring to each of the matters in the Direction but rather, that they weigh up the circumstances as a whole. No other conclusion is reasonably open having regard to the whole of cl.1 taken together with the otherwise obligatory language in the Direction (see, for example, cl.9).
The matters that are “relevant” within the meaning of cl.2(b) of the Direction are those that arise on the material before the Tribunal: cf. Uelese at [61].
Conclusion
For those reasons, the Tribunal’s decision was affected by jurisdictional error. There will be an order for the issue of writs of certiorari and mandamus. The first respondent should pay the applicant’s costs of the application.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 30 June 2017
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