Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 289
•19 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 289
File number(s): BRG 871 of 2019 Judgment of: JUDGE EGAN Date of judgment: 19 February 2021 Catchwords: MIGRATION – Application for Student Visa – finding by Tribunal that applicant did not have a genuine intention to only stay in Australia temporarily – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth), Schedule 2, cl 500.212 Cases cited: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
ETA067 v Republic of Nauru (2018) 92 ALJR 1003.
Minister for Aboriginal Affairs v Peko – Wallsend Ltd (1986) 162 CLR 24.
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Number of paragraphs: 38 Date of last submission/s: 17 February 2021 Date of hearing: 17 February 2021 Place: Brisbane Applicant: The Applicant appeared in person on his own behalf Solicitor for the First Respondent: Ms Reid of Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
BRG 871 of 2019 BETWEEN: SAHIL SHARMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
19 FEBRUARY 2021
IT IS ORDERED THAT
1.The Originating Application for Review filed on 8 October 2019 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
The applicant is a citizen of India who had in 2013 completed a Bachelor of Science in Information Technology. The applicant arrived in Australia on 12 July 2015 and had worked in Australia since August 2015.
On 17 June 2015, the applicant was granted a Student (Class TU) (Subclass 500) Visa which was valid for a period of three years until 15 March 2018.
On 29 February 2016, the applicant commenced study for a Master of Information Technology degree but he cancelled his enrolment in such course before its conclusion. By cancelling his enrolment, the applicant failed to comply with a condition of his visa which required him to remain enrolled in a course of study.
On 14 March 2016, the applicant enrolled in a Certificate 4 course in Commercial Cookery. On 12 March 2017, the applicant finished such course.
The applicant commenced a Diploma of Hospitality Management course on 1 May 2017 and completed such course on 29 April 2018.
The application for the subject visa was made on 14 March 2018, some 46 days prior to the completion date of the Diploma of Hospitality Management course. At the time of the making of such application, the applicant advised the department that once he had completed his course he would start his career in “international hotels and continental restaurant, New Delhi, India.”
On 4 May 2018, a delegate of the Minister refused to grant the visa to the applicant on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), in that the delegate was not satisfied that the applicant genuinely intended to only stay temporarily in Australia. Clause 500.212 relevantly provided as follows:
“500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) 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 intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.”
After completion of the Diploma of Hospitality Management course, the applicant remained un-enrolled in a course of study from 29 April 2018 until 2 August 2018 when he then enrolled in a Bachelor of Business course.
On 18 May 2018, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the decision of the delegate.
On 27 August 2019, the Tribunal invited the applicant to attend a hearing before it.
The applicant appeared before the Tribunal on 12 September 2019, at which time he gave evidence and presented arguments in support of his claims.
On 12 September 2019, the Tribunal affirmed the decision of the delegate. The Tribunal provided written reasons to the applicant on 19 September 2019. On 8 October 2019, the applicant filed an Originating Application for Review of the decision of the Tribunal.
Grounds of Review
At the hearing before the Court, the applicant relied upon the Originating Application for Review and his affidavit filed in support of such application. The applicant had failed to comply with an order of the Court made on 9 December 2020 requiring him to file written submissions in support of his application by 4.00pm on 20 January 2021.
The applicant’s Grounds for Review were as follows:
“1. The Administrative Appeal Tribunal wilfully ignored the relevant material in a way that affected the exercise of powers vested in it that amounted to an error of law.
Particulars:
Tribunal ignored the submission dated 10th September 2019 submitted by migration agent and did not notify the applicant that the submission was received by the tribunal. The Tribunal did not assess those submission (additional material) before making the decision and that submission was relevant to the case. In doing so, the Tribunal did not ensure it fully participated in the decision-making process and that it made a rational judgement with regard to the application. As such, the Tribunal made a jurisdictional error, having no power to make the decision invalid by the law.
2. The tribunal failed to give adequate weight to a relevant factor of great importance and given disproportionate weight to some factor.
Particulars:
A. The tribunal failed to give weight that the applicant is enrolled in the course that has total tuition fees of $45000 and he already paid $22500 towards his course fees. In contrast, the tribunal given weightage that he obtained enrolment in Bachelor of business which would extend the applicant's temporary residence till July 2012. If the applicant's intention would have to use the student visa to remain in Australia, he would have obtained vocational diploma course that would cost him $6000. The tribunal made incorrect assumptions that the applicant is not intend to study but to stay in Australia. As such, the tribunal made a jurisdictional error, having no power to make the decision invalid by the law.
B. The tribunal questioned the application about the business plan instead of his study plan. The business plan is irrelevant in the applicant case because it is only requiring when the applicant is ready to start the business. The applicant was required to study till 2021 and applicant did not require to establish the business plan as the study was not a part of his business but to learn and acquire business studies. The applicant failed to seek his study plan but instead sought the applicant's business plan.
3. In its decision, giving the detailed explanation, the tribunal excepted and stated [at 19 (b)] that the applicant has a significant incentive to return to his home country. In contrast, the tribunal stated [at 43] that the tribunal is not satisfied the applicant is a genuine applicant. As such, tribunal has made a jurisdictional error explaining how the applicant is not a genuine temporary entrant when he has a significant incentive to return his home country.”
As to Ground 1 of the Application for Review, at [8] – [24] inclusive of its reasons, the Tribunal considered the factors which it ought to take into account when assessing the applicant’s claims. It did so in a careful and considered way having regard to the applicant’s work and study history since his arrival in Australia.
At [25] and [26] of its reasons, the Tribunal, when considering the applicant’s actual course of study in Australia as compared with his stated intentions at the time of his first application for a visa, said as follows:
“[25] The Tribunal was concerned in relation to the applicant’s pattern of enrolments since arriving in 2015 to complete a Master of Information Technology. While the Tribunal acknowledges that applicants may struggle when completing higher tertiary studies on arriving in Australia, due to a range of reasons, including language, homesickness and different methods of teaching, the applicant did not attempt that course of study and reverted to vocational training courses at certificate level, in an entirely different field of study.
[26] The applicant told the Tribunal that he used to assist his father in a small business producing sweets, and he had a love of cooking. The applicant completed his Certificate IV in Commercial Cookery, and a Diploma of Hospitality Management, and has again changed his field of enrolment to business. Given the applicant’s previous tertiary qualifications obtained in India, the reasons for travelling to Australia and the pattern of the applicant’s enrolment and the visa applications, the Tribunal does not consider the change from information technology to cookery to hospitality management, and now to business, reasonable.”
The Tribunal considered the applicant’s circumstances in Australia and India relative to his social networks in Australia, the applicant’s emotional connection to Australia, the applicant’s changing pattern of enrolment since his arrival in Australia, the applicant’s work history in Australia, and the applicant’s living arrangements since his arrival in Australia.
At [31] – [32] and [34] of its reasons, the Tribunal, when considering the value to the applicant of the applicant’s study in Australia, said as follows:
“[31] Further, were the applicant to pursue his ambition of opening his own business, the applicant’s proposed qualification, while being of general benefit, in circumstances where the applicant will not be required to compete with other applicants for employment in such circumstances, the value of a Bachelor of Business to the applicant in terms of obtaining employment or improving his employment prospects is limited.
[32] The applicant did not obtain the tertiary qualifications for which he travelled to Australia. He has now completed two courses which are relevant to the applicant’s stated career goals and aspirations, and which equip him with the necessary skills and qualifications to return to India to pursue those goals, which is what the applicant told the Department of Immigration and Border Protection he intended to do on completion of his Diploma of Hospitality Management at the time of applying for the visa under review.
…
[34] In considering the value of the proposed course of study to the applicant’s future, the Tribunal finds:
a. The applicant’s current course of study is a progression to the applicant’s already obtained qualifications in Australia, but a regression to the Master of Information of Technology the applicant travelled to Australia to complete. The proposed Bachelor of Business is at the same level as the applicant’s Bachelor of Science and Information Technology obtained in India.
b. The applicant’s proposed Bachelor of Business will assist the applicant to obtain employment or improve the applicant’s employment prospects generally. In considering the applicant’s absence of previous employment in India, the reasons for the applicant travelling to Australia, the limited steps taken to secure employment, the limited steps taken in relation to establishing a business plan, the period of time the applicant has been in Australia, the applicant’s already attained qualifications, the additional time to complete the proposed course of study, the current course of study is therefore of limited benefit to the applicant in pursuing his stated career goals and aspirations.
d. If the applicant genuinely holds the career aspirations claimed, his existing qualifications will enable him to return to India to pursue those goals and ambitions. The course is not relevant to the applicant’s original intentions in relation to travelling to Australia to complete a Master of Information Technology. The proposed course of study is generally relevant to the applicant’s stated desire to work in hospitality or establish his own business.
e. The Tribunal considers the applicant’s pattern of enrolment and academic progression is inconsistent with the applicant’s intentions of travelling to Australia to pursue tertiary studies at a Master’s level and it has regressed to vocational level courses in a different field of study, prior to again changing his field of study to a Bachelor of Business, not contemplated by the applicant at the time of the visa application. The Tribunal does not consider the applicant’s change in career and study pathway as reasonable.
f. The remuneration the applicant can expect in his home country is uncertain, not based on a specific position, and dependent on the relative success of a business yet to be established in New Delhi. The Tribunal accepts the applicant’s living expenses in India may be less than Australia. The applicant’s income in Australia is likely to be comparatively less than the income the applicant may receive on either initially being employed or in establishing his own business, notwithstanding the lack of previous experience in India, and the fact the applicant will return to fulltime work and not receive the financial support he currently receives whilst studying in Australia.
e. There is no evidence before the Tribunal in relation to comparative remuneration the applicant would receive in Australia and in India, in mutualising the qualifications the applicant seeks to obtain, and the Tribunal makes no findings in that regard.
At [38](e) of its reasons, the Tribunal was entitled to find that because of:
(a)the applicant’s reversion to studying at a certificate level rather than at a masters level;
(b)the applicant’s failure to maintain enrolment in breach of his visa conditions;
(c)the proposed extension of enrolment until June 2021;
the applicant’s primary purpose for enrolling in his then most recent course of study was primarily for the purpose of maintaining his residence in Australia.
Having regard to all of the evidence before it, it was open for the Tribunal to find that the applicant did not meet the relevant criteria as set out in cl. 500.212(a) of Schedule 2 to the Regulations. Further, the Tribunal found that the applicant was vague when stating his intentions, and otherwise was unpersuasive in circumstances where his already obtained qualifications would have enabled him to return to India to pursue his stated goals and ambitions without his undertaking further study in Australia.
The Court finds that the Tribunal did consider the 10 September 2019 submissions made on behalf of the applicant by his migration agent. For example, the Tribunal dealt with aspects of such submission as follows:
(d)At [14] – [22] of its reasons, the Tribunal dealt with parts of paragraphs 28 – 37 of the submission relating to the applicant’s family and study history in India.
(e)At [22] of its reasons, the Tribunal dealt with paragraph 46 of the submission relating to the applicant’s failure to maintain constant enrolment in a course of study whilst in Australia on the visa.
(f)At [30] of its reasons, the Tribunal dealt with paragraph 42 of the submission relating to the applicant’s change in the course of his study.
The Tribunal otherwise gave reasons which were consistent with its having appropriately considered and weighed up all of the evidence before it, and all of the submissions made to it in the 10 September 2019 submission. The Tribunal was not required to deal specifically with each and every aspect of the evidence before it in its written reasons.
In ETA067 v Republic of Nauru at [13]-[14] per Bell, Keane and Gordon JJ it was said: [1]
“[13] The absence of an express reference to evidence in a tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
[14] Further, there is a distinction7 between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.”
(footnotes omitted)
[1] (2018) 92 ALJR 1003.
There is no merit to Ground 1.
As to Ground 2, it was claimed that the Tribunal had failed to give appropriate weight to aspects of the applicant’s claims relating to, first, the amount of money paid by him for his studies, and second, the applicant’s submissions about his not needing a business plan until shortly prior to the commencement time of any business intended to be operated by the applicant upon his return to India. The substance of such ground is that the Tribunal failed to have due regard to relevant considerations, or alternatively, that the Tribunal had had regard to irrelevant considerations. There is no merit to such ground.
As referred to above, it has been held in ETA067 that a Tribunal was not required to refer to each and every aspect of the evidence before it when handing down its decision. [2]
[2] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
The Court finds that a consideration of the necessary expenditure on tuition fees by an applicant was not a relevant consideration, or one which was a central integer to the applicant’s claims. It was but one factor which constituted the factual matrix within which the Tribunal was required to consider and weigh up before arriving at its decision. The Tribunal found that the applicant did not satisfy the genuine temporary entrant criteria, satisfaction of which was a pre-condition to grant of the visa. Further, the Tribunal was entitled to look at the length of time required to complete a course of study when considering whether the applicant had satisfied the genuine temporary entrant criteria or not. What weight was to be given to any particular aspect of the evidence before the Tribunal was a matter for it to determine. [3]
[3] Minister for Aboriginal Affairs v Peko – Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J.
Further, it was open for the Tribunal to find that someone in the position of the applicant would have had a business plan in place prior to embarking upon a course of study in a foreign country. The fact that the applicant was unable to enunciate what his plans were, supported the Tribunal’s finding that the applicant was vague about his future intentions. There is no merit to Ground 2 of the application.
Ground 3 invited the Court to undertake an impermissible merits review. Dissatisfaction with the findings of the Tribunal does not constitute a basis for asserting jurisdictional error.
Further, even if ground 3 was interpreted as an assertion that the Tribunal acted unreasonably, it is a high bar over which the applicant must climb in order to succeed in any such claim. In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30], Kenny, Kerr and Perry JJ summarised the principles relating to legal unreasonableness as follows:
“[30] The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …
(Citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”
The Tribunal was entitled to weigh up those factors which supported the applicant’s claims against those factors which did not support such claims. At [19] of its reasons, the Tribunal considered the applicant’s circumstances in his home country (referring to Australia as being a better place to study), as well as the lack of family ties in Australia relative to India. The Tribunal also referred to the fact the applicant was being supported financially during the course of his study in Australia by his family, as well as the fact that there were no military service commitments or civil and political unrest reasons for the applicant not to return to India. Against those considerations, the Tribunal, at [27] of its reasons, considered factors which did not support the proposition that the applicant genuinely intended to remain in Australia only temporarily. For example, the Tribunal found that the applicant had developed strong social and emotional connections in Australia which provided a strong incentive for him to remain here. The applicant’s changing course of study was found to have been undertaken for the purpose of using the study visa program as a means of circumventing Australia’s migration policy. The Tribunal considered the fact that the applicant had been earning income while in Australia, and that he had a good knowledge of what life in Australia constituted.
The Tribunal’s analysis of all of the evidence before it was balanced and reasonable. There is no merit to Ground 3 of the Application for Review.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 19 February 2021
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